14 July 2015

Opening doors and removing glass ceilings - widening participation in the legal professions

Event: City University: widening participation in the legal professions.

Date: 10 July 2015

Speaker: Patricia Robertson QC, Vice Chair Bar Standards Board

Let's start with some figures.

Based on the last Bar Barometer report, which gives figures through to 2012, half of new entrants to the Bar and around a third of the practising Bar are now women: over 5,400 out of some 15 and a half thousand practising barristers.  That's progress.  But only some 12% of self employed QCs are women. 82% of self employed QCs are men.

45% of the employed bar are women. Something over 1,200 out of 2,700.  In itself that's good but it also reflects the fact women are more likely than men to leave self employment.  Proportionately more women leave self employment and they do so earlier in their career trajectory. The 2011 exit survey found as many as half of women leavers were leaving in the first 7 years of practice.

There are many fewer QCs at the employed bar.  Only 26 in total, 3 of whom were women.  That's 0.2% of women at the employed Bar, who've achieved the rank of QC.  I would be prepared to bet many of those individuals probably achieved that rank before they switched to employed status.  By way of comparison 4.5% of women at the self employed bar are QCs.

As matters currently stand, your chances of making QC are very much smaller if you abandon self employed practice for employment and a much higher proportion of women do just that.

You would find a similar pattern for black and minority ethnic barristers.  More of them leave the self employed profession for employment.  Fewer make it to QC.

The fact is that as the legal profession is currently organised, employed barristers find it much more difficult to gain the necessary high level advocacy experience to support an application for silk.  Knocking around in the lower courts whilst relatively junior is one thing.  Liberating senior individuals from other demands on their time so that they can prepare substantial court cases is just not a model many law firms have found profitable.  When it gets big and complex, most of them prefer to out source to the Bar and it is the big and complex stuff that gets you silk. You may have a very rewarding and interesting career as an employed barrister in an SRA regulated law firm but if silk is what you are after you're unlikely to get it by that route.

If, therefore we are taking as our measure of progression, achievement of the rank of QC then we need to crack that in one of two ways:

Either: we find ways to retain women and minorities within the self-employed Bar, instead of seeing them vote with their feet a few years into practice.

Or: those at the Bar who want to do so band together to establish advocacy focussed firms, so that there's the option of pursuing a career as a specialist advocate to the level of silk, whilst being employed.

Or both.

We know from exit surveys that women and black and ethnic minority barristers are more likely than white men to cite financial factors for leaving, uncertainty about their income or not earning enough.  Women are much, much more likely than men, of any ethnicity, to cite as reasons for leaving pressure of work, inflexibility of working arrangements, a sense of lack of support from clerks and colleagues and desire to spend more time with their family.

What is to be done?

Self employment at the Bar is a very tough path and people need to be realistic in their expectations about that.  Nothing is going to change the fact that getting a trial up is exhausting, stressful work.  Not knowing where your next piece of work is coming from is just as stressful in a different way.

But there are things we can do to make this more tolerable.

First, the financial factors.

Everything tells us that there's an earnings gap by gender in society at large, which is mirrored at the Bar, and my own observation is that gap opens up early, starting even before women have children.  Then as they do have kids, it makes it harder for them to afford the kind of child-care that you need to sustain the flexibility your practice needs.  Some of the reasons for that may lie in women not being at ease with their own worth - in the wider world there's a lot of research about the way women fail to do themselves justice in pay negotiations and I imagine there's the same phenomenon at the Bar.  Let's all mentor ourselves and each other in demanding our dues and make sure our clerks support us in doing so.

We need to ensure everyone has an equal crack of the whip in winning work on their merits.  Under the code of conduct, the BSB requires work allocation to be monitored.  I did that job for 7 years for my chambers.  I developed very detailed reports which analysed the data, cohort by cohort, anonymised by gender and ethnicity.  I analysed not just the allocation by the clerks of work that came in unallocated but also the relative success of individuals in winning work that came to them by name.  The information these reports produced were hugely useful in creating a picture of what positive career progression should look like and spotting when someone appeared to be out of kilter.  My impression, but I would be the first to accept mine was far too small a sample to generalise from, was that women were finding it harder to progress to winning work in their own name.

I think it would be hugely constructive if we could look in a collaborative way at this from both sides of the profession.  What research tells us is that interviewers tend, without even being conscious of it, to select people like themselves and that's, of course, exactly why we all now recognise the need to train people in equality and diversity if they are on an interview panel.  But decisions as to who to instruct at the Bar are typically made by the senior ranks of law firms, and the vast majority of those in the senior ranks are white and male. When they phone up asking for a big hitter for their trial, what mental image will they have in mind?  Law firms are doing lots of good work to address the issues around career progression in their own ranks.  Initiatives like the Law Society diversity charter are greatly to be welcomed.  But perhaps we could together extend that work to ensure that those instructing the Bar are alert to their own unconscious assumptions and don't fall into the trap of assuming that the little 5 foot blond woman barrister isn't the big hitter they are after.  She may be the next Jonathan Sumption.

Next, the biological factors.

Last I looked most of my male colleagues had kids.  Assuming you have a partner in parenthood, this is a shared challenge.  I have three.  Crucially, I have a husband who was willing and able to rise to his share of the challenge.  Equally crucially, love my children though I do, I never had the ambition to be a Tiger mother, hovering over them as they simultaneously do their Kumon maths whilst practising the violin.  If you are going to combine a career at the Bar and motherhood, you are going to have to relinquish control to others.  If it's his turn to mind them while you get on with some work, don't back seat drive.  A self employed work pattern has pluses as well as downsides so make use of them.  You are doing a case involving heavy paperwork.  Work from home and break for tea with the kids when they get back.  You may have to go back to your desk when they're in bed but you've not been in chambers until 11 at night without seeing them.  Your case settles.  Leave early and surprise them at the school gate.  You don't have to meet anyone else's billing targets as long as you can pay your own bills.  To my mind that still does make the Bar more family friendly than the traditional route to partnership in a law firm.  And if you are already trying to juggle the Bar and kids, do check out the Bar nursery.

Lastly, the emotional factors.

In my experience, women tend to beat themselves up more over their failures.  And you will have some failures at the Bar.  You've got to be resilient but it helps if you have people to talk to about it.  Don't wait for someone to set up a mentoring scheme for you.  Find your own mentors.

Above all, find the right life partner.  You may think this nonPC but I am deadly serious.  You need a supportive partner with whom you can negotiate.  If you do have a family then practically every day will involve a negotiation over who is doing what.  There needs to be give and take in that.  I know one couple, both at the Bar and with young kids, doing the kind of commercial work that produces very long, heavy trials, who discuss and negotiate who gets to say yes to the next big trial.  He's taken silk.  Now she's in the run up and he recognises that she needs the court exposure more than he does right now, so she takes priority.  It takes real grown ups to know when to step back and when to step forward in that sort of negotiation, and it takes real love.

So there you have it, all you need is love!