The Diversity League Table 2014 – Editorial Censored?
This editorial for the Black Solicitors Network’s Diversity League Table journal is the edited version of a feature interview with Professor Gus John for the Diversity League Table 2014. Professor John was informed on the morning of the Diversity Awards event that the BSN Board had pulled the editorial on the grounds that the DLT’s target was City Firms and that the interview and his SRA report were concerned mainly with what was happening to BME solicitors in small firms or as sole practitioners.
This, despite the fact that the principal argument in the report is that BME solicitors operate predominantly in small firms or as sole practitioners, largely because of the recruitment policies and practices of Big City and Magic Circle firms. Given the fact that the interview was requested and granted since 10 September 2014 and that the BSN itself provided the 10 questions that were put to professor John, it was odd, to say the least, that the editorial was being substituted on the day of the DLT Awards event, 29 October 2014.
Disparate reports on institutional racism
In July 2008 the Solicitors Regulation Authority (SRA) published Lord Herman Ouseley‘s report following his review into disproportionate regulatory outcomes for black and minority ethnic solicitors. In response to Lord Ouseley’s report, the SRA published their first Equality and Diversity Strategy (2009 – 2011), supported by an action plan which incorporated Lord Ouseley’s recommendations.
In March 2014 the Independent Comparative Case Review (ICCR) published a report conducted by Professor Gus John* and Anthony Robinson to further examine whether BME solicitors were disproportionately represented amongst those subject to regulatory action or investigation. The report also examined whether regulatory outcomes impacted disproportionately upon BME solicitors, both in terms of findings and the severity of sanctions.
While Lord Ouseley’s report in 2008 indicated a high probability of institutional racism within the SRA at the time, the March 2014 report did not conclude an inference of possible institutional racism. In fact, the March 2014 report revealed that not only was there a disproportionate number of BME solicitors under investigation by the SRA during the period 2009-2012, but also that the eventual outcome of the SRA’s investigations ended with more severe sanctions being applied to BME respondents.
Background to the ICCR Report
The terms of reference of the ICCR included carrying out a comparative file review to identify any disparity in the way the SRA applies its policies and procedures in dealing with BME practitioners, as compared to others, with a view to identify potential improvements to such practices, policies and procedures to maximise fairness and consistency.
A key question raised during the review was whether there was evidence, even on the balance of probabilities that the SRA actions in respect of BME individual solicitors and firms had been motivated by racism, or whether there were other factors that might explain the disproportionality in the number and nature of the actions taken by the SRA and the outcomes of the regulatory process.
Also at issue was whether the fact that the disproportionality was in respect of BME solicitors and their firms was sufficient evidence of direct or indirect racial discrimination, an/or institutional racism, or enough to justify an inference of race discrimination or institutional racism.
The review also included comparing outcomes at the SDT depending upon the ethnicity and gender of respondents by statistical analysis of ethnicity and gender by outcomes based on strike off, suspension, fine, reprimand, respondent ordered (only) to pay SRA costs, no order or all allegations dismissed.
Overcoming initial challenges
According to Professor John, there were a number of challenges in conducting the review, including the actual quality of the case files.
“The review began in earnest in the Spring of 2013, having selected a sample of 160 files of cases that had been concluded between 2009 and 2011,” Professor John said. “80 of those files were of cases involving white solicitors, 40 of whom would have had their regulatory matter dealt with through internal adjudication by the SRA and the other 40 by the Solicitors Disciplinary Tribunal. This pattern was mirrored by the 80 files involving BME respondents.”
Working to the terms of reference (ToR) necessitated access to information preferably organised in a standardised form in the files, however this turned out not to be the case.
“In fact, there was data needed that was not entered in the files at all and we were unaware until the latter stage of the review of the secondary sources from which that data could be gleaned,” he said.
The second inbuilt challenge Professor John identified was that the exercise was exclusively a file review and there was no access to the subjects of those files, or to the SRA personnel, especially case workers, who had worked on the cases in question and had built up those files.
“This was a significant challenge especially as the reasoning behind the decisions made by case workers or adjudicators was not always transparent in the files,” Professor John said. “It was not always easy, therefore, to gain a nuanced understanding of some critical aspects of the regulatory process.”
The third major hurdle was that once the SRA had published the terms of reference, a number of solicitors whose cases were still live insisted on gaining access to the review team.
“In the expectation that we would examine or otherwise intervene in their case in a manner that would critically assess the SRA’s actions and decision making,” he said. “Those solicitors were very reluctant to accept that the ToR did not allow for such interventions on our part.”
Findings on disproportionality
In summary, Professor John and his fellow researcher found that disproportionality was correlated with ethnicity insofar as the SRA was applying a set of policies and procedures that were rules-based and that focused narrowly upon regulatory breaches. The report also found those breaches were more likely to occur in small firms or in practices run by BME individuals than more generally.
“The majority of BME practitioners are either sole operators or partners in small firms, typically located in challenging environments and providing access to legal services for vulnerable communities,” Professor John said. “Our report was emphatic that there were structural reasons for the occurrence of those breaches as distinct from any predisposition on the part of BME practitioners ‘per se’ to be rules averse, unaccountable or dishonest.”
Defending the disparity between the reports
According to Professor John, while it was possible to have concluded that on the basis of numerical disproportionality correlated with ethnicity, the SRA and the Solicitors Disciplinary Tribunal were institutionally racist, an in-depth analysis of the data gathered and of the SRA’s application of regulatory procedures and decision-making would have led to the same conclusion as the March 2014 report.
“Headlining a finding of ‘institutional racism’ simply because of the disproportionality we had found would have triggered predictable media comments and equally predictable defensiveness on the part of the SRA and that BME practitioners, commentators and SRA alike,” he said.
On top of this, Professor John highlighted those findings and recommendations would provide practitioners with a firmer basis for holding the SRA to account for how it regulates BME solicitors in the light of the report, than any preoccupation with institutional racism.
“As serious researchers operating from an ethical base, we made it very clear from the outset that our report would be evidence-based and we would report without fear or favour,” he said. “I stand by that and as the author of the report. I would defend our findings and conclusions in any forum.”
All of this raised the question as to whether, given the large number of BME solicitors operating as sole practitioners or running small firms, the SRA should have applied its rules-based approach as inflexibly as it did, thereby generating fear, distrust, accusations of bullying and intimidation, and ruining the careers, livelihood and wellbeing of BME practitioners.
“We saw evidence that that operational culture led practitioners (BME and white) to refuse to engage with the regulator informally, or to alert the SRA to problems and seek joint solutions directly such problems were identified, for fear that the SRA would ‘come down on them like a ton of bricks’,” he said. “This, however, raises a different set of questions which we also pose and discuss in our report.”
BME solicitors disproportionately affected by SRA regulation due to socio-economic background
Although Professor John raised the issue that BME solicitors might be disproportionately affected by SRA regulation due to the socio-economic background of many of these lawyers, this one reason did not stand alone.
“It is correlated to the demographic about the number of BME practitioners operating as sole practitioners or running small firms and the risk factors that trigger regulatory action,” he said.
Those factors have to do with the ability to employ experienced and competent staff, capital cushioning and the health of office accounts and keeping client accounts sacrosanct at all times. Other factors include the ability to afford and make space for continuous professional development, the ability to engage regulatory lawyers as well as contesting SRA actions and decisions.
A duty of care to new practitioners
The report raised an issue that the number of BME practitioners setting themselves up in practice soon after qualifying maybe due in part to the lack of opportunities in larger firms, who perhaps in some cases might not recruit from their university. Professor John noted the report made a number of recommendations on the responsibility of the Law Society and the findings relating to support for new practitioners.
“For example, we recommended that the Law Society, as the profession’s representative body, should explore what positive action provisions can be made for BME solicitors and sole practitioners, to enable them to deliver the best possible services to their communities within the challenging environments in which many of them operate,” he said. “We also recommend Law Society considers the extent of practical support that can be provided, including the provision of more extensive toolkits, or guidance on the challenges of setting up and running small firms.”
This included guidance on the Regulations and requirements concerning setting up sole practices or small firms and on the capitalisation rules, to ensure that solicitors seeking to set up firms have sufficient knowledge and experience of the regulatory rules and that they are adequately capitalised to be able to cope with the financial pressures that small firms face.
Prior to working on the ICCR report, Professor Gus John also chaired the Working Party on Equality, Diversity and Social Mobility (EDSM) for the Legal Education and Training Review (LETR). The EDSM working party gave due consideration to the post-qualification experience of lawyers, including difficulties with obtaining training contracts and the limited opportunities newly qualified lawyers have to gain practice experience before setting up in practice themselves.
“We believe that legal education and training providers should be more upfront with BME lawyers, in particular about what their post-qualification experience is likely to be and how they might prepare themselves to cope with that,” Professor John said.
Consequently, Professor John was part of a team that made recommendations about reviewing the ‘training contract’ element of the qualifications and post-qualification practice route. They argued that the inequality in that system, based on factors such as university attendance level, grade of qualification, social class, gender and cultural background is such that objectives of promoting equality, diversifying the profession and promoting social mobility would continue to be compromised.
“Given the ongoing structural problems that newly qualified lawyers encounter, especially with training contracts, and that these problems are likely to increase as a result of the introduction of legal aid commissioning, Alternative Business Structures and the rest, the Law Society and the Solicitors Networks should jointly examine the implications for the future of BME solicitors in the profession and take appropriate action,” he said.
Eliminating disproportionality and the Outcome Focused Regulation
In November 2011, the SRA started rolling out the Outcome Focused Regulation (OFR), which was predicated upon a qualitatively different relationship between the SRA and the regulated profession. The OFR’s emphasis was on supervision, constructive engagement and supporting solicitors/firms in identifying and managing risk, among other things, so as to anticipate and avoid breaches. According to Professor John, it remains to be seen whether OFR will eliminate the disproportionality that has been a cause of concern to the BME legal community for so many years.
“The use of supervision in assisting practitioners and firms to identify and proactively deal with risks as early as is practicable and in the process focus on structural issues and support needs should result in the SRA needing to take formal action against considerably less BME practitioners and small firms,” he said.
However Professor John highlighted that supervision was just one piece of that jigsaw, and as argued in his report, the way in which the SRA interprets and set out to meet the objectives of the Legal Services Act 2007 was also critical.
“Justifying over-regulation by invoking the objective to ‘promote and protect the public interest’ is something of an oxymoron, especially when ‘the public interest’ is so narrowly defined,” he said. “We believe that regulation should be both in the interest of the public and of the profession which promotes access to justice. The profession in general and BME practitioners in particular should be assumed to be committed to promoting and maintaining the highest standards in the interest of the public and as a key to commercial success. We would like to think that the BME solicitors’ networks will monitor the application of OFR and hold the SRA to account if it does not result in eliminating regulatory disproportionality.”