Diversity still matters: Answering lawyers’ top questions

Burford recently co-hosted a webcast with McKinsey & Company and Clifford Chance on why diversity still matters and is indeed all the more critical to business and the business of law in this downturn. Lawyers who attended the webcast posed many questions, and some that we ran out of time to address are answered below by Tiernan Brady, Global Director of Inclusion at Clifford Chance, a leading global law firm that has recently committed to new global and regional gender, ethnicity and LGBT+ targets.

Why is there a lack of publicity concerning the business case for diversity? Most people (particularly non-diverse people) still believe that diversity is just “the right thing to do.” What can businesses and law firms do to change that?

I think it is critical that both cases are made. There is no doubt that there is power in the values case for inclusion but the economic imperative is also a key factor. Leadership in firms need to understand the economic case and become proponents of diversity. If inclusion is seen purely as a value, or worse good branding, then it gets perceived as a luxury item, an add on. That diminishes it and exposes it to the very real risk of being put to one side in challenging times rather than being placed at the core of managing through challenging times.

There is a lot of good research out there but I think business leaders need to talk through real examples within their own firm that reflect the economic benefits that accrue to recruitment, retention, promotion, innovation and client/customer relationships. The research is powerful but we live in a world where research can be discounted as "not really understanding our firm". Leadership should not be shy about talking about the economic imperative—they need to consistently message inclusion as symbiotic with both values and success. Mixed messaging and hopping from one perspective to the other can confuse. There is, I believe, almost a new guilt about saying this about success as well as values. That guilt is misplaced. Combining both makes the message more powerful and builds support across a wider firm population.

Lots of leadership messaging is required.

What steps can law firms take to counter microaggressions in the workplace?

Personally I worry about the framing of microaggressions. I think we need to make sure our campaigning and change focusses on empowering people to see themselves as part of the solution not part of the problem. In my experience in campaigning, I have found people tend not to opt into campaigns that define them as bad people. This is critical because supporting inclusion, like all campaigns, is a voluntary process and people can choose to ignore it. We want people to become campaigners and active advocates for inclusion. When people do that we start to see the real culture change.

Let me put it to you this way. During the Irish referendum on marriage equality, a woman in her 80s came to a door to talk to people who were canvassing for a yes vote. She said "of course I am going to vote yes. It is not your fault the way you are". This woman, who had spent eight decades absorbing the environmental language of homophobia had become an advocate. Getting her to untangle the decades of bad language will take another few decades. Should the people at the door have told her she was committing a microaggression? I don't believe it would have helped the journey in any way.

One of the biggest challenges we face is so much of the language around inclusion is making people feel like they have to become experts before they can become advocates. That is the wrong way round. We need people to make the journey to supporting inclusion knowing that none of us will ever become total experts and that in a world where we are all biased, none of us will ever not make mistakes.

Firms need to change the journey people are being presented with so they can be advocates. Then firms should promote learning and provide interesting resources and programs for people so they can build their understanding. I have found reverse mentoring and lunch and learns to be great examples of how you take people on this journey without starting the journey by condemning them.

We need to have rules that root out conscious aggression and we have then to build a respect culture through leadership and campaigning.

Initiatives like these and positive culture campaigns inside firms are much more likely to see the empowerment of people and a real reduction in bad culture and disrespect.

Business leaders are increasingly calling for AFAs (Alternative Fee Arrangements). Could this help law firms move away from a model that incentivizes high-hourly producers and help to close the gender and BIPOC gap?

Potentially is probably the best answer I can give on this one. We are currently trialing, on a regional basis, alternatives to the hourly model. We are awaiting the results. There will be no one size fits all solution on this. If, for example, the challenge on gender is the need for greater promotion rather than addressing a retention problem then the hourly model may not be the critical source of the problem in that instance.

There is a need for more evidence on this. That said, evidence will come from innovation and experimentation and AFA's could be one part of that. I think sometimes we have to throw lots of things at the wall and see what sticks.

Could the move towards more flexible work from home arrangements have the potential to help female lawyers?

Again, potentially. Intuitively it makes sense to think that more flexible working will benefit people with family responsibilities. I would like to think we live in a world where these responsibilities are shared evenly but we all know that is not the case. So there is certainly a strong argument to be made that more working from home and flexible working should positively impact those people with such responsibilities.

It will also make for a better quality of life for many people, which should aid retention in the legal sector—and more importantly better quality of life is a pretty good idea in general! Flexible working has been the revolution of 2020. After years of resisting change to the presenteeism model, the entire sector had to flip a switch overnight. The result was it learned that it was perfectly possible to do so. It is hard to see how any firm could justify a denial of working from home and other flexible working after 2020.

How this impacts the sector will only be truly understood over time.

One challenge I would highlight is around networking. Women and minorities are at a disadvantage when it comes to networking. There are many reasons for this, including the obvious one that when the existing network doesn't look like you it is hard to break into it or break the cycle of that existing predominant networks maintaining their predominance. If there is to be greater flexibility then firms need to recognize that this could reduce networking opportunities and work doubly hard to build such opportunities for everyone.

What initiatives are Clifford Chance implementing to support its diverse lawyers and prevent attrition?

There are a wide range of potential interventions. Each region will present distinct challenges to different population groups so there is no one size fits all. What is required is the suite of initiatives so that at each region and for each population group we can develop relevant targeted and tailored strategies which select from the suite.

This starts with good data and research. Our data analysis in the UK region for example looks at team selections, hours billed, clients met, value of cases, tenure and a wide range of other points to see where divergences among population groups commences. We also carry out polls and are currently commencing focus groups for our UK ethnic minority staff. Initiatives without data and data analysis are just hunches, they are not strategies.

The initiatives that flow from this follow three main strands—change the rules, change the culture, change the lived experience. Each is required to address attrition.

Some examples of the current initiatives in these strands:

Change the Rules:

• Inclusion targets at both global and regional level with deadlines
• Transparency—publication of our attrition rates
• Transparency—pay gap reporting
• Independent review of our promotion pipelines
• Ensuring diversity metrics underpin internal committee selection

Change the Culture:

• Conscious inclusion training
• Inclusion focussed pro bono programs/opportunities
• Culture and respect internal campaigns

Change the Lived Experience:

• More client facing opportunities for populations groups
• More client leadership roles
• Mentoring programs
• Reverse mentoring programs
• Focus groups