Structure, agency, gender and ethnicity in the legal profession in England and Wales

Presentation to EWERC, 30th May 2012

Dr Jennifer Tomlinson University of Leeds, UK

Prof Daniel Muzio, University of Manchester, UK

Background and context

• Paper using data from the Legal Service Board funded research project: • “Diversity in the legal Profession in England and Wales” (2010) co authors Prof Hilary Sommerlad, Prof Lisa Webley and Liz Duff

• Following review of Law Society statistics, LSB sought qualitative data of the employment experiences of women and BME legal practitioners to contextualise quantitative data• Report focused on entry to and promotion within the profession, this paper focuses on the latter

Gender, ethnicity and the legal profession

• Lack of diversity positioned as a supply side problem – lack of good quality female and BME applicants and entrants.• However, there are high numbers of females and growing numbers of BME individuals entering the profession. • Since 1991 female entrants outnumbered male new entrants.• Women currently account for 60% of NEs but account for just 20% of partners (Law Society 2010)• 50% of BME practitioners work in firms with four or fewer partners (Law Society 2010)• High rates of withdrawal from the profession (Law Society, 2010; Brockman 2001; Webley and Duff 2007).

Tournament system and informality of workplace practices

• According to Wilkins and Gulati:

“The inevitable scarcity of training opportunities pushes associates along informal, but nevertheless identifiable, career paths almost from the moment they arrive. The few associates who get on the training track will receive interesting work, meaningful training, supervision and supportive mentors. The others will end up as flatliners drowning in a sea of routine paperwork” (1996: 656).

• The ‘few associates’ on the training track tend to look like the existing partners: white, male and often privately educated (Cabado & Gulati 2003; Sommerlad et al 2010; Wilkins 1998).

Professional versus organisational careers

• In the field of gender and work, leading scholars have suggested that since professional status is based on accreditation, such careers are likely to be more sustainable and meritocratic, when compared to organisational careers (Crompton and Harris, 1999; Elliott et al., 2001).

• Also evidence that BME individuals may be similarly attracted by the combination of accreditation and professional status as mechanisms for social mobility (Loury et al., 2005; Archer 2011).

• So what do these individuals do when they are faced with organisational structures that are biased against them?

Theorising career strategies Structure and agency

• Giddens (1979; 1984) aims to reassert prominence of agency. • Structures have capacity to be both enabling and constraining• Agency and structure are intrinsically linked. Structures have a virtual existence and are made real through individual action

“The constitution of agents and structures are not two independently given sets of phenomena, a dualism, but represented in a duality. According to the notion of the duality of structure, the structural properties of the social systems are both medium and outcome of the practices they organise. Structure is not external to individuals … it is in a sense more internal” (1984: 25)

Margaret Archer

• Particular interest in Archer’s work (1996; 2003; 2007) on structure and agency, which emphasises the importance of the analytical distinction between structure and agency and the pre-existence of structures.• She takes issue with Giddens, who, she argues, has a voluntaristic bias in that ‘institutions are what people produce, not what they confront - and have to grapple with’ (1982: 463).• Archer refers to a three stage ‘morphogenetic cycle’: 1) structural conditioning; 2) socio-cultural interaction; then either 3) structural reproduction or structural elaboration • Emphasis on reflexivity and ‘internal conversations’

Emirbayer and Mische (1998)

• They propose a reconceptualization of agency as ‘a temporally embedded process of social engagement’ (1998: 963), expressed through three inter-related temporal elements: current, future and past.• Current: the capacity of individuals to make ‘practical and normative judgments’ in response to emerging demands, dilemmas and ambiguities• Future: goal oriented, ‘projective’ or future focused, the capacity for actors to ‘imagine alternative possibilities’• Past: habit, repetition, iteration and reflexivity

Research questions

Are women and ‘racialized minority’ practitioners ‘fitting on or breaking the legal mould?’ (Brockman 2008)

Research questions...

1. How do these highly educated and skilled individuals describe and account for their experiences in the legal profession?

2. What agency strategies do these practitioners develop to maintain and develop their careers?

3. Do they seek to change or challenge existing structures (reform the system)?

Methods and approach

• We conducted semi-structured socio-biographical interviews with 68 female and BME legal practitioners. • We also interviewed five senior Diversity Officers in five large law firms about diversity initiatives.• We began each interview by asking the respondent to summarise their careers to date, focusing upon significant events in their careers and (as appropriate) personal life. • The research questions also probed a number of defined issues including career aspirations, progression, mentorship, challenges/barriers and assistance/support in careers.

Sample

In terms of the 68 respondents’ employment status:• 10 trainees• 29 associate/senior associate (non-partner level) solicitors either in private practice (24) or in-house (5)• 12 partners (5 salaried and 7 equity)• 7 barristers• 10 ‘others’ (inc law academics, legal executives & paralegals)

Of the partners 2 were female BME partners (1 salaried and 1 equity), 8 were white female partners (4 salaried and 4 equity) and 2 were BME male partners (both equity).

Structural barriers within the profession• Numerous barriers to career progression are evident in

literature. These ‘opportunity structures’ (Kanter 1997) enable white men and more likely to constrain women and minorities.

• Among our sample three broad structural issues were emphasised. We have referred to these as:

1) Quantifying commitment through time: long, unpredictable hours & high billing targets (Sommerlad & Sanderson 1997: Epstein et al 1997)

2) Rain making: developing and sustaining profitable client relations (Wilkins 1998; Bolton and Muzio 2007)

3) Informality and lack of transparency in the promotional process (Kay and Hagan1998; Wilkins and Gulati 1996)

Structural barriers within the profession

Billable hours & time commitment• ‘You have to work long hours, have no other commitments and be prepared to drop everything at the last minute and if you didn’t you wouldn’t hit the next level’.• ‘You need an ability to pull all nighters’

Rainmaking• ‘The profession is so much about marketing and bringing in clients really, it is really about connections. So you could be a terrible lawyer and still bring in clients and do well.’

Structural barriers within the profession

Rainmaking• ‘It’s a profession which drinks the whole time ... I am reluctant to go

to an event which is alcohol dominated… Certain relationships, both internally within the firm and externally with clients, haven’t developed or have deteriorated... do I think I can be the best at what I do? No, I don’t think I’ll ever be able to build the relationships that people who are not Muslims will be able to build.

Informality of promotional process• ‘There's no feedback. And the appraisal process is quite lip service,

but it's manipulated to the point where retrospective appraisal forms will be given out for you to sign, to show that you haven't met the targets that were never previously set for you, that kind of thing.’

Response to structural barriersthrough E&D?

Many respondents were sceptical about E&D initiatives:  • ‘The firm I worked for were going for this [diversity] accreditation… The profile wasn’t quite what we would want it to look like in terms of diversity, at the time I had a bad sports injury and I was on crutches and one of the partners said to me, Legal Aid Board will be in the building at three o’clock on the ground floor, when I give you a ring, come down and walk across the floor with your crutches, making sure they see you; that will cover our diversity - you are black and its looks like you have a disability.’

• Ahmed (2007) tick box performativity

Individual career strategies• We aim to show how individuals make sense of and respond

to their circumstances through agentic strategies. • These have significant effects not only on the career

trajectories and working lives of the individuals in question, but also on the extent to which structures within legal firms are reproduced or transformed over time (Archer 1996).

• Six strategies identified: assimilation, compromise, playing the game, location/relocation, reforming the system, withdrawal

• Strategies are not mutually exclusive and tend occur at different career/life points with different mixes of agency

• Strategies vary in terms of gender and ethnic composition as well as age profile

Assimilation• Assimilation strategies involve the display of behaviour

patterns and traits that signaled conformity with the dominant white, masculine culture

• We identified 19 respondents who assimilated and this strategy was more common among BME professionals. Dress in particular, not looking ‘too ethnic’, was a common point.

• Also for white women, minimising the impact of motherhood and managing like a man (Wajcman 1998):

“We’d have motivation talks and they’d say, ‘oh, I had a kid like a week ago, and I’m straight back into the office, and those working deals’; and you think, that’s not normal.”

Assimilation

• ‘I think this is very important, appearance… I guess things like your accent, the way you dress. We talk about what is appropriate for the office, and some very interesting things were mentioned which, you know, I could quite possibly take issue with... how lawyers are meant to dress and how they speak and how they come across. Well, what if you have a Cumbrian accent? Well, that is just too bad for you’.

Compromise

• Compromise strategies involve the management of personal and professional commitments often inc. rescaling ambitions.

• 25 of the 26 respondents in this category were women.

“I did not take time off to go to school sports days. You sort of felt that if a bloke took time off to go to school sports day everybody was saying what a good father he is.”

• Other issue for women was of personal integrity:

“There is a lot of sexism, very casual sexism, at the Bar. I think there still is…the older barristers would hit on you. And that was perfectly acceptable. They kind of assumed you would smile and go along with that because you needed their patronage.”

Compromise

• ‘The hours that are required make it very difficult to be a woman and have a family and be successful… And it saddens me… the fact that I need to stay up till midnight, two, three, four in the morning to carry on working … I would love to be a partner one day, that’s always been my aspiration. I want to work my way up and I don’t see why I shouldn’t want that… I feel like I have to choose between the two and I don’t like it’.

Playing the game

• With 33 respondents, ‘playing the game’ (developing strategies to use their difference and turn it into an advantage) was one of the most popular strategies. Typically adopted at start of the career:

“A choice when I was a trainee… when I was probably six months into my training contract I decided that I needed to be very clever about the way I networked within the firm in order to secure a job, because at that stage jobs were few and far between… I found out who was powerful, I found out who the biggest clients of the firm were, I found out where the power base in the firm was, and I applied myself in that direction very, very carefully.”

“I am pretty much on every committee I can be”

Playing the Game

• ‘I’ve never hesitated really to play the female card because, you know, at the end of the day you’ve got to use what weapons you’ve got at your disposal frankly’

• ‘[Clients] want to show the other side that they’ve got a big black lawyer’

• ‘I took up golf’

Location/Relocation

• 32 respondents spoke the importance of location and/or relocation for career maintenance. Sometimes occurred later in a career, but sometimes earlier due to a career defining moment:

“One of my colleagues was sitting in an office with a glass front with two [others] and as I walked down towards the office, he could see me coming... as I walked in he joked that he thought I was a cleaner because all the cleaners were black and they didn’t have any other black lawyers in the firm... I went to him the next day and said I was upset because he was my supervisor at the time. He said that if I mentioned it to any of the partners he would say that the comment had never been made and that the other colleagues in the room would back him up.”

Location/Re-location

• ‘[I’ve] shifted away from crime and gone and done family law, simply because the structure and the kind of work [crime law] is very last minute, the hours are very long, and you just cannot balance it with having children (white female senior associate solicitor)’.

• ‘There’s going to be a point where I’m expected to bring in lots more work and engage [in the after hours culture], and I’m not going to be able to do that… I can see myself going in-house’

Reforming the system

• While the majority of our sample worked within the current system, a minority of respondents (with a count of 17 this was our smallest strategy) articulated clear attempts to reform the legal profession to make it more accommodating for others.

“Well, the main thing for me was being the first in chambers to have a child and being the one who had to push for the maternity leave provisions of the Bar Council to be incorporated within chambers’ constitution. That was very difficult, when I had my first child, there were some very different responses to it… even people I thought of as friends… A lot of women have benefitted from it since.”

Reforming the System

• [Now] we try and deal with things by getting inside the Law Society and speaking to them. We joined these other organizations and societies because it raised our profile and people then looked at [us] and said, well, we need to send them work because there are very few other black owned city law firms.’

Prospective withdrawal

• 9 respondents spoke of leaving the legal profession altogether. These respondents sometimes spoke of a legal career as being a temporary or short term career - something unsustainable over the life-course:

‘I think women over 40 in the legal profession in a large firm, … I’d be very interested to know the figures, but I don’t think there are so many. And I’ve certainly noticed a lot of people who I had a great deal of regard for in my area hitting 40 and coming out, all for different reasons… it’s been very interesting that there’s been this sort of exodus.’

Gender and ethnicity in the strategies

Strategy Total Cases Female White (%)

FemaleBME (%) Male BME (%) Avg. Age PQE Years

Sample population 68 47 40 13 35.5 9.5

Assimilation 19 26 53 21 33.5 8

Compromise 26 50 46 4 36.5 10.5

Playing the Game 33 52 27 21 36 10

Reforming the System 17 71 23 6 43 17

Location/Relocation 32 56 41 3 38.5 12

Disengagement/withdrawal 9 45 44 11 37 9

Discussion

• The career strategies were distinctive in terms of their temporality.

• Some typically early career strategies and future focused, goal oriented (assimilation and playing the game)

• Others more common mid-career and related to current & emergent dilemmas (compromise, location/relocation)

• Reforming the system, the least common strategy, typically happened later, indeed reformers had an average of 17 years PQE and most were either a barrister or partner. Importance of status, power, commitment to change and reflexivity.

• Many “potential reformers” have either withdrawn or relocated

Conclusions

• Organisations seem to be doing more but potentially hampered when individuals, often rightly, see this as a tick box exercise

• Individuals adopt a range of career (coping) strategies, but most of these (compromise, assimilation, playing the game, location/relocation, withdrawal) tend to reproduce the system rather than reform it.

• We aim to emphasize the rarity of structural reform and explain why, even in contexts populated by highly skilled agents, when organizations appear committed to equal opportunities, old structural inequalities often endure