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Demography, discrimination and diversity: a new dawn for the British legal profession?

2005; Taylor & Francis; Volume: 12; Issue: 2 Linguagem: Inglês

10.1080/09695950500246522

1469-9257

Donald Nicolson,

Gender Politics and Representation

Click to increase image sizeClick to decrease image size Acknowledgements I would like to thank Sharon Collins, Harry Dematagoda, Paul Dougan, and Frances Evans and Lindsay Nicolson for research help, and Aileen McHarg and the anonymous referees for their comments on earlier drafts. Notes [1] E.g. women constituted 1.7% of the annual admissions of English and Welsh solicitors in the 1920s, 2.3% in the 1930s, 2.9% in the 1940s, and 4.2% in the 1950s, rising to 11.6% in 1972 (Abel, 1988 Abel, R. L. 1988. The Legal Profession in England and Wales, London: Basil Blackwell. [Google Scholar], pp. 173 and 415). Rates of increase were similar for barristers and Scottish solicitors (Abel, 1988 Abel, R. L. 1988. The Legal Profession in England and Wales, London: Basil Blackwell. [Google Scholar], pp. 80 and 328–330; Paterson et al., 1999 Paterson, A. A., Bates, St. J.N. and Poustie, M. 1999. The Legal System of Scotland, 4th edn, Edinburgh: W Green & Son Ltd. [Google Scholar], p. 262; McGlynn, 1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 146), though much slower for advocates (Paterson, 1988 Paterson, A. A. 1988. "The legal profession in Scotland: an endangered species or a problem case for market theory". In Lawyers in Society, 1: The Common Law World, Edited by: Abel, R. L. and Lewis, P. S.C. Berkeley: University of California Press. [Google Scholar], pp. 93–94). [2] (Excluding pupils and squatters): personal communication, General Council of the Bar Records Office. [3] Personal communication, Faculty of Advocates Records Office. [4] I.e. 49.6% in 2000–01: personal communication, General Council of the Bar Records Office; cf. McGlynn (1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 146) for earlier years. [5] Only 27 out of 95 entrants (28.4%) over the last four years: personal communication, Faculty of Advocates Records Office. [6] In England and Wales, consistently over 55% since 1995–96 (McGlynn, 1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 12) and 63% in 2000–01 (The Law Society, 2001 Law Society. 2001. Women Solicitors in England and Wales—Fact Sheet Information Series, London: The Law Society. [Google Scholar], p. 4). [7] But see Shiner (1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], p. 114), regarding the Bar Vocational Course. [8] See also Duff et al. (2000 Duff, E., Shiner, M., Boon, A. and Whyte, A. 2000. Entry into the Legal Professions: The Law Student Cohort Study Year 6, London: The Law Society. [Google Scholar], p. 44), regarding newly qualified solicitors, and NcNabb and Wass (2005), who in their survey report that on average women solicitors in private practice earn 56% as much as men—a difference of £26,093. [9] Some 8% in England and Wales (personal communication, General Council of the Bar Records Office); 9.7% of practising advocates in Scotland as at April 2002 (personal communication, Faculty of Advocates). [10] E.g. in 2000, 24.5% of female English and Welsh solicitors worked outside private practice compared to 17% of men (Cole, 2001 Cole, B. 2001. Trends in the Solicitors' Profession: Annual Statistical Report, 2000, London: The Law Society. [Google Scholar], p. 19). [11] E.g. by a factor of 8 and 36, respectively, amongst English and Welsh solicitors in private practice in 2001 (The Law Society, 2001 Law Society. 2001. Women Solicitors in England and Wales—Fact Sheet Information Series, London: The Law Society. [Google Scholar], pp. 5–6). [12] Although their study was based mostly in commercial law firms (who arguably set the tone for the rest of the profession), their findings are supported by other research in the UK (Holland & Spencer, 1992 Holland, L. and Spencer, L. 1992. Without Prejudice, Bournemouth: TMS Consultants. [Google Scholar]) and elsewhere (e.g. Epstein et al., 1995 Epstein, C. F. 1995. Glass ceilings and open doors: women's advancement in the legal profession. Fordham Law Review, 64: 291[Web of Science ®] , [Google Scholar]; Hagan & Kaye, 1995 Hagan, J. and Kay, F. M. 1995. Gender in Practice: A Study of Lawyers' Lives, Oxford: Oxford University Press. [Google Scholar]; Thornton, 1996 Thornton, M. 1996. Dissonance and Distrust—Women in the Legal Profession, Oxford: Oxford University Press. [Google Scholar]; Schultz & Shaw, 2003 Schultz, U. and Shaw, G. 2003. Women in the World's Legal Professions, Oxford: Hart Publishing Ltd. [Google Scholar]). See also Sommerlad (1994) Sommerlad, H. 1994. The myth of feminisation: women and cultural change in the legal profession. International Journal of the Legal Profession, 1: 31[Taylor & Francis Online] , [Google Scholar], McGlynn (1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 12, esp. Chs 4 and 6), Sanderson and Sommerlad (2000) Sanderson, P. and Sommerlad, H. 2000. "Professionalism, discrimination, difference and choice in women's experience in law jobs". In Discriminating Lawyers, Edited by: Thomas, P. London: Cavendish Publishing Ltd. [Google Scholar], Sommerlad (2002) Sommerlad, H. 2002. Women solicitors in a fractured profession: intersections of gender and professionalism in England and Wales. International Journal of the Legal Profession, 9: 213[Taylor & Francis Online] , [Google Scholar] and McNabb and Wass (2005) McNabb, R. and Wass, V. 2005. Male–female earnings differentials among lawyers in Britain: a legacy of the law or a current practice?. Labour Economics, 12 (forthcoming) [Google Scholar]. [13] There is even evidence that firms discriminate in favour of male interviewees by taking into account that they mature later than female interviewees (Rolfe & Anderson, 2003 Anderson, S., Murray, L. and Maharg, P. 2003. Minority and Social Diversity in Legal Education, Edinburgh: The Stationery Office. [Google Scholar], p. 326; but cf. Rhode, 1988 Rhode, D. L. 1988. Perspectives on professional women. Stanford Law Review, 40: 1163[Crossref], [Web of Science ®] , [Google Scholar], pp. 1187–1190, noting how the evaluation of female competence is affected by gender stereotypes). [14] Note, however, women's double bind in that if they do portray masculinist professional qualities, they are likely to be regarded as unnaturally unfeminine (Menkel-Meadow, 1985 Menkel-Meadow, C. 1985. Portia in a different voice: speculations on a women's lawyering process. Berkeley Women's Law Journal, 1: 39 [Google Scholar], p. 54; Sommerlad, 2002 Sommerlad, H. 2002. Women solicitors in a fractured profession: intersections of gender and professionalism in England and Wales. International Journal of the Legal Profession, 9: 213[Taylor & Francis Online] , [Google Scholar], p. 225). [15] Though according to Duff et al. (2000 Duff, E., Shiner, M., Boon, A. and Whyte, A. 2000. Entry into the Legal Professions: The Law Student Cohort Study Year 6, London: The Law Society. [Google Scholar], pp. 59–60) and Sanderson and Sommerlad (2000 Sanderson, P. and Sommerlad, H. 2000. "Professionalism, discrimination, difference and choice in women's experience in law jobs". In Discriminating Lawyers, Edited by: Thomas, P. London: Cavendish Publishing Ltd. [Google Scholar], p. 161) not all aspects of work outside private practice may be as favourable. [16] See Holland and Spencer (1992 Holland, L. and Spencer, L. 1992. Without Prejudice, Bournemouth: TMS Consultants. [Google Scholar], p. 11) on the greater number of both single and childless female as compared to male barristers. Cf. also the employer practice of recommending abortion to pregnant solicitors (McGlynn, 1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 100; Sommerlad & Sanderson, 1998 Sommerlad, H. and Sanderson, P. 1998. Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status, Aldershot: Dartmouth. [Google Scholar], p. 233). [17] The Scottish Law Society does not monitor ethnicity, whereas the statistical base of advocates (440, out of which seven are of ethnic minority origin: personal communication, Faculty of Advocates Records Office) is too small to warrant conclusions. [18] This expression is used to denote only black and Asian, and not white, ethnic minorities. On the terminological difficulties associated with race and ethnicity, see e.g. Vignaendra et al. (2000 Vignaendra, S., Williams, M. and Garvey, J. 2000. "Hearing black and Asian voices—an exploration of identity". In Discriminating Lawyers, Edited by: Thomas, P. London: Cavendish Publishing Ltd. [Google Scholar], pp. 133–135, 146–148) and Mason (2000 Mason, D. 2000. Race and Ethnicity in Modern Britain, 2nd edn, Oxford: Oxford University Press. [Google Scholar], Ch. 2). [19] Some 89.3% of the total (personal communication, General Council of the Bar Records Office). [20] In 2001 they constituted 3.1% of all QCs (personal communication, General Council of the Bar) compared with 0.4% in 1992 (Harvie, 1992 Harvie, D. 1992. Minorities in a recession. New Law Journal, 142: 746 [Google Scholar], p. 748). [21] In 2000 they constituted 3.45% of all partners (Cole, 2000 Cole, B. 2000. Trends in the Solicitors' Profession: Annual Statistical Report 2000, London: The Law Society. [Google Scholar], p. 24), compared with seven out of a straw poll of 472 in 1992 (Harvie, 1992 Harvie, D. 1992. Minorities in a recession. New Law Journal, 142: 746 [Google Scholar]). [22] In addition, when these factors where not held constant, ethnic minorities were found to be less likely to be retained on qualification (Duff et al., 2000 Duff, E., Shiner, M., Boon, A. and Whyte, A. 2000. Entry into the Legal Professions: The Law Student Cohort Study Year 6, London: The Law Society. [Google Scholar], p. 23). [23] E.g. the number of ethnic minority barristers with sufficient years practice for appointment to silk (see McGlynn, 1998 McGlynn, C. M.S. 1998. The Woman Lawyer: Making the Difference, London: Butterworths. [Google Scholar], p. 149) is not out of line with the number of awards. [24] Although the definition of class is controversial (see e.g. Scase, 1992 Scase, R. 1992. Class, Buckingham: Open University Press. [Google Scholar]) in the current context, the class indicators used in the studies cited below provide a sufficiently accurate picture (cf. Shiner & Newburn, 1995 Shiner, M. and Newburn, T. 1995. Entry into the Legal Profession: The Law Student Cohort Study Year 3, London: The Law Society. [Google Scholar], p. 17; Vignaendra, 2001 Vignaendra, S. 2001. Social Class and Entry into the Solicitors' Profession, London: The Law Society. [Google Scholar], pp. 8–9). [25] The Inns used to record fathers' occupation but this was to ensure class exclusivity rather than inclusivity. [26] Scottish law students are entitled to grants for the academic, but not vocational, stage of legal education, though they will normally have to pay a small 'graduate endowment' after graduation. [27] Shiner and Newburn (1995 Shiner, M. and Newburn, T. 1995. Entry into the Legal Profession: The Law Student Cohort Study Year 3, London: The Law Society. [Google Scholar], Ch. 2) also report that only 14% and 12% of those surveyed had working class fathers and mothers, respectively. [28] E.g. in Shiner's study, Oxbridge law graduates had a 89% chance of a training contract offer, old university graduates 69%, and those from new universities 49% (Shiner, 1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], p. 53, and see p. 122 regarding pupillages). [29] See especially the strong link between class and starting salaries (Shiner, 1995 Shiner, M. and Newburn, T. 1995. Entry into the Legal Profession: The Law Student Cohort Study Year 3, London: The Law Society. [Google Scholar], p. 43ff), which is not shaken by subsequent pay increases (Duff et al., 2000 Duff, E., Shiner, M., Boon, A. and Whyte, A. 2000. Entry into the Legal Professions: The Law Student Cohort Study Year 6, London: The Law Society. [Google Scholar]). [30] E.g. 63% of Oxbridge law graduates obtained training contracts in City firms, as opposed to 24% from other old universities, and 6% from new universities (Shiner, 1995 Shiner, M. and Newburn, T. 1995. Entry into the Legal Profession: The Law Student Cohort Study Year 3, London: The Law Society. [Google Scholar], p. 18; cf. also Halpern, 1994 Halpern, D. 1994. Entry into the Legal Profession: The Law Student Cohort Study Years 1 and 2, London: The Law Society. [Google Scholar], pp. 53–54 on firms' recruiting priorities). [31] But see note 32 and Duff et al. (2000 Duff, E., Shiner, M., Boon, A. and Whyte, A. 2000. Entry into the Legal Professions: The Law Student Cohort Study Year 6, London: The Law Society. [Google Scholar], p. 23) regarding the effect of institution attended on the chances of post-traineeship employment. [32] From 0.24 to 0.30 and 0.73 to 0.80 in the case of pre- and post-LPC offers, respectively (Shiner, 1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], p. 6). [33] From 0.30 (for those from a non-selective school) to 0.41, but no statistically significant differences regarding post-LPC offers (Shiner, 1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], p. 6). [34] E.g. graduating from Oxbridge rather than a new university more than doubled the probability of receiving a pre-LPC training contract offer and doubled the chances of a City job (Shiner, 1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], pp. 62 and 77), whereas an Oxbridge 2.2 degree gave candidates a slightly higher chance of obtaining a pupillage than a new university first (Sedley, 2000 Sedley, S. 2000. "The future of advocacy". In Discriminating Lawyers, Edited by: Thomas, P. London: Cavendish Publishing Ltd. [Google Scholar], p. 7). See also Rolfe and Anderson (2003 Anderson, S., Murray, L. and Maharg, P. 2003. Minority and Social Diversity in Legal Education, Edinburgh: The Stationery Office. [Google Scholar], pp. 320–323). [35] E.g. this increased the chances of a pupillage from 0.81 to 0.90 (Shiner, 1997 Shiner, M. 1997. Entry into the Legal Profession: The Law Student Cohort Study Year 4, London: The Law Society. [Google Scholar], p. 124). The effect on training contract offers was similar, albeit more complex (pp. 60–61). [36] E.g. according to Shiner (2000 Shiner, M. 2000. "Young, gifted and blocked! Entry to the solicitors' profession". In Discriminating Lawyers, Edited by: Thomas, P. London: Cavendish Publishing Ltd. [Google Scholar], p. 109), all things being equal, an independent school and old university educated whites with a graduate or professionally qualified parent have a 70% chance of obtaining a training contract prior to the LPC, compared with 11% for non-selective school and new university educated ethnic minorities whose parents lack a degree or professional qualification. [37] Thus, while the disadvantages of class and ethnicity might operate cumulatively as we have seen, anecdotal evidence suggests that ethnic minority (or at least African-Caribbean) women are treated better than their male counterparts, possibly because they simultaneously satisfy two equal opportunity targets (cf. Harvie, 1992 Harvie, D. 1992. Minorities in a recession. New Law Journal, 142: 746 [Google Scholar], p. 748). [38] Cf. Shiner and Newburn (1995 Shiner, M. and Newburn, T. 1995. Entry into the Legal Profession: The Law Student Cohort Study Year 3, London: The Law Society. [Google Scholar], pp. 32–34) on expectations of gender, race and class discrimination, Morton & Harvie, 1990b Morton, J. and Harvie, D. 1990b. Racial discrimination amongst solicitors. New Law Journal, 140: 1146 [Google Scholar] and Vignaendra, 2001 Vignaendra, S. 2001. Social Class and Entry into the Solicitors' Profession, London: The Law Society. [Google Scholar], p. 14, on how ethnic minority and working applicants lower their career sights. [39] Page references are to the online version at: http://www.lawsociety.org.uk//documents/downloads/ED_DiversityHandbook.pdf. [40] Thus, whilst both include race, sex, religion or belief, sexual orientation, and disability, the Law Society also includes nationality and ethnic origin and highlights that gender includes marital status, but has not yet followed the Bar Council in prohibiting age discrimination [but see Law Society (2004 Law Society. 2004. Delivering Equality and Diversity: A Handbook for Solicitors, London: The Law Society. [Google Scholar], p. 8) where it warns that age discrimination may amount to gender discrimination]. [41] Cf. also the recognition of the need to accommodate a lawyer's different characteristics stemming from their social class and education (The Law Society, 2004 Law Society. 2004. Delivering Equality and Diversity: A Handbook for Solicitors, London: The Law Society. [Google Scholar], p. 8). [42] E.g. one even finds a reference to adherence to equal opportunities requirements being a prerequisite for BARMARK accreditations not in the Code's introduction or main body but hidden away in Annex G which contains the Council's policy on maternity and paternity leave. [43] Paragraph 1.60 of the Code is entitled "Grievance, Procedure, Monitoring and Review" but omits to deal with monitoring! [44] Noting that employed staff in chambers are only required to be given the statutory minimum (Bar Council, 2004 Bar Council. 2004. Equality and Diversity Code for the Bar, London: Bar Council. [Google Scholar], para. 1.137), cynics might put this down to the fact that chambers' rent rather than salaries is involved. [45] Another less worrying objection is that the desire to accommodate requests from clients for lawyers of the same background might be exploited by those motivated by sexism, racism or class snobbery (cf. Edwards, 1995 Edwards, J. 1995. When Race Counts: The Morality of Racial Preference in Britain and America, London: Routledge. [Google Scholar], p. 210), but this can be prevented by carefully drafted professional rules (cf. The Law Society, 2004 Law Society. 2004. Delivering Equality and Diversity: A Handbook for Solicitors, London: The Law Society. [Google Scholar], pp. 21 and 30). [46] Indeed, some continue to say that they can see no gender differences at all (see Flanagan, 1991 Flanagan, O. 1991. Varieties of Moral Personality: Ethics and Psychological Realism, Cambridge, MA: Harvard University Press. [Crossref] , [Google Scholar], Ch. 10; Larrabee, 1993 Larrabee, M. J. 1993. An Ethic of Care: Feminist and Interdisciplinary Perspectives, Edited by: Larrabee, M. J. New York: Routledge. [Google Scholar] passim). [47] The distinction between 'hard/strong' and 'soft/weak' affirmative action is notoriously difficult to make (see e.g. Rhode, 1988 Rhode, D. L. 1988. Perspectives on professional women. Stanford Law Review, 40: 1163[Crossref], [Web of Science ®] , [Google Scholar], pp. 1196–1197) but in simple terms one can characterise the former as involving some form of prima facie preferential treatment. [48] Cf. also the Bar Council (2004 Bar Council. 2004. Equality and Diversity Code for the Bar, London: Bar Council. [Google Scholar], 'Foreword'), which claims that the Bar does in fact take this lead.