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GC MAGAZINE > Summer issue 2015 > Career path

Room at the top of the legal profession?

David Johnston is chief executive of the UK’s Social Mobility Foundation. He chats to GC about why people from privileged backgrounds get a leg-up in the UK legal profession, and how in-house counsel can make a change.
By Catherine Wycherley


GC: What are the barriers for people from less privileged backgrounds to enter the legal profession in the UK?

David Johnston (DJ): I think there are a range of barriers that present themselves at each stage – from being a child to becoming an adult who then wants to enter this profession. Obviously, education is hugely important and the exposure to the legal profession that you get whilst you are in education is very important. A lot of people might get that exposure at home, if you’ve got relatives who are in the profession, or if you have people who come round for dinner who’ve been in the profession. Those who are very able but who don’t get that exposure need it when they are in school.

Work experience placements are still disproportionately going to the relatives of employees or clients. We would say to people that you don’t have to stop that but don’t make it all you do, because that’s not based on how good people are, or how enthusiastic they are about the profession. But when they present their CV, that’s going to fool some people into thinking they are a lot more driven and enthusiastic about the profession than someone else who just simply doesn’t have the connections. Sometimes people pooh-pooh it, thinking, ‘oh, what does a week of work experience give you?’ But actually it lets you interact with people within that profession, learn the sorts of things they’re looking for, and make connections which might help you with your applications for vacation schemes and so on, down the line.

I think there is a particular emphasis on presentation within the legal profession, and that’s the kind of thing that might rule someone out, not because of how good their brain is, but because of this vague notion that you couldn’t put them in front of a client. That’s often code for factors based on class.

A lot of people would be helped by professions being able to judge potential more accurately. At the moment, what the legal profession is doing (like a lot of the professions we target) is judging your past academic performance. Obviously that’s understandable - you’re trying to whittle large numbers down to small numbers. But they know that what GCSEs, A Level results and degree results you’ve got is not actually all that helpful in proving who will make the best lawyer.

You’ve got senior individuals in these professions saying, ‘I would not now get into my firm’, because they didn’t go to one of the right universities, they didn’t go to university at all perhaps, or they don’t have strings of As or A*s at A Level, and their firm wouldn’t even look at them now. And yet look at how good they’ve proven themselves to be as a lawyer.

GC: Has it gotten worse?

DJ: I think that a lot of people in their fifties think it has gotten worse. I’ve had all sorts of conversations with people over the years, people who have risen at a time when there wasn’t such an emphasis on being a graduate or being a graduate from a very narrow range of universities, who do definitely think that.

But the figures haven’t moved hugely; generally about 40% of partners in top firms were at private school (sometimes higher), and about 40% of trainees were at private school. Dr Lindsey McMillan [senior lecturer in economics at the Institute of Education, UCL] looked at people born in 1958 and in 1970 and showed that the average family income of people joining the legal profession had gone up, but the IQ had gone down.

GC: Why do you think that is?

DJ: I think there is something about risk aversion within the legal profession, and I think there is this notion that if you widen your intake, to diversify your staff base, you might somehow lower standards or you might compromise excellence. There’s no evidence for this whatsoever - and there’s partly no evidence because they’re not hiring these people in the first place!

Regulators play a very important part as well. I’ve had a number of firms tell me that when they try to change the way they do things, they get a lot of pushback from the regulators around compromising excellence.

You’ve got all these firms watching each other and it takes one to break and do something different for others to think that they should do so too. There is a notion that, for example, the percentage of Oxbridge people you have is an indication of how smart your firm is. The key thing about this, which I think people sometimes misinterpret, is that if access to university was somehow totally independent of background - if there were some sort of test that you couldn’t be coached for, which everybody did, and the best people went to the best universities - that might be something. But nearly half the people who’ve got the top grades are going to universities outside the Russell Group [the 24 leading universities in the UK].

You find in every area of this debate that the most oversubscribed firms and professions are often the most complacent. But the number of applications doesn’t actually tell you the quality, and what the legal profession hasn’t mastered is what predicts future potential as a lawyer. In the early sifting stages all that’s happening is you’re judging how well someone was taught at school.

Five key changes that companies can make, according to David Johnston:

  1. When you’re doing school outreach or activity with young people, make sure that it’s well targeted and that it’s sustained work – so you don’t simply walk into a school, give a talk for an hour and disappear. There should be a path of follow-up activities that will take those who are most engaged, and that are great potential for that profession, to eventually enter that profession.
  2. Widen your internship and work experience opportunities. The legal profession has made very good strides on that. I’m not sure that many in-house teams (or as many in-house teams as should be) are involved in initiatives like Prime, although I know that some are.
  3. Non-graduate entry. There’s no reason why we should all have to have gone to university.
  4. Monitor your data for both new entrants and also your existing workforce. You’ve got surveys on staff about gender, LGBT, race and ethnicity, disability – this is just adding some questions on what type of school you went to, whether your parents went to university and whether you’re eligible for free school meals - those are the core three areas.
  5. Academics. There are a range of things you can do in selection, but one of those is about widening the range of universities you go to. It doesn’t mean you have to traipse around all 115, 120 universities in the UK, but it does mean that you have to recognise there’s talent beyond the usual 10-20 that you think all the best people come from. Firms like Linklaters and Baker & McKenzie have committed to finding a way of contextualising the academic achievement of the people they look at. What that means is, rather than asking, ‘do you have five A*s, do you have six A*s, do you have three As at A-Level?’ instead ask, ‘what are your grades based on the performance of the school you went to?’ You might have six A*s, but actually you might be at a school where you’re pretty average for where you are. The person who got one A* from a school where only 15% of people pass their GCSEs is really exceptional.

GC: So there’s not really that appetite or drive to open the profession up, to become more diverse?

DJ: I’m not sure I would say that. The legal profession has been hit quite hard over a number of years for the stats on what it looks like – for the overrepresentation of people from private schools and a very small number of universities. That actually has meant that it’s doing more activity than many of the other professions. There are things like the ‘Prime Initiative’ (to offer work experience placements to children on free school meals, or to children from schools with high numbers of pupils receiving free school meals), and people experimenting with things. For example, Clifford Chance experimented with CV-blind recruitment for its vacation scheme, and Linklaters has committed to doubling the number of universities it takes its trainees from. People are looking at contextualising applicants’ academic grades, and so it is not doom and gloom by any means.

But the numbers haven’t yet shifted, and there are various things that confuse the picture. Firms talk about what percentage from state school they have, but actually, selective state schools have four to five times the number of people at them from private prep schools than the most disadvantaged schools. So when you say, ‘we’re X% state school’, what percentage of that is comprehensive school? You may well find that some of those people who went to grammar school were actually at prep school before, and had they not got into grammar school, they would have been sent to private school, so in terms of background, they’re hardly any different.

Often 70% of intakes are coming from private and grammar schools, which only educate 11% of the population in total. Law firms are supposed to be recording and publishing data on the backgrounds of their employees, but they need to do it in meaningful categories.

GC: Do you think it’s changing with the advent of ‘New Law’?

DJ: One of the issues you can face here is that when people do turn their minds to social mobility they think it should have to come via a different route to the one that people traditionally take. Some other sorts of professional services firms rushed to introduce non-graduate entry, thinking this would be the social mobility answer, and then they found that 40% of their intake was coming from private schools because by itself that is not solving the issue. Why does it have to be new law, new media, new everything – why do the people who are from less privileged backgrounds have to go that route? What’s blocking them in the usual one?

What we’ve got to do is have the legal profession consider the way it runs its selection at the moment. If you know that half the people with the top grades go to non-Russell Group universities, why are you going to such a narrow range of universities? If you know that your A*s at GCSE, or your A Level As' don’t make you a good lawyer, why make that such an important part of the process? It helps reduce the numbers, and it’s a risk aversion thing: if you’ve hired someone with a perfect academic record, then you can’t be accused of having made an obvious error that could have been avoided.

GC: What can in-house lawyers do to move the agenda on?

DJ: Gender, race and ethnicity have moved on a bit through client pressure. At the moment, that client pressure does not exist on social mobility. I did a panel with someone from one of the top firms, and she said, ‘we don’t care about social mobility, we care about gender because that’s what our clients care about. We’re 90% male at partner level and our clients don’t like that, so that’s what we focus on’. I think trying to generate that client pressure is quite an important thing, but at the moment it’s not there.

This one is harder, because what firms were able to do with gender and race-ethnicity is go to private schools and find non-white, non-males. That’s diversity of a form, but when they go through the process they’ve got the same grades, they’ve got the same cultural understanding (which is what’s really important), they reflect exactly the same soft skills – they’re just not white males. And then you whack them in the brochure, and you look like a really diverse firm.

Social mobility requires firms to challenge their prejudices, and those prejudices are often projected onto their clients. They say, ‘we couldn’t put them in front of a client’. Actually clients are neither exerting pressure to change this, nor are they saying, ‘we must have people who have the same accent, who have all been to Oxbridge’. Clients at the moment are still thinking it’s up to firms. It just hasn’t hit their agenda in the same way because it isn’t so obviously visible.

I think companies should be putting pressure on their supply chain – saying, ‘this is something we care about, and we want suppliers who care about it’. We access such a narrow range of the country’s talent. It cannot be the case that all the best people are in such a small section of the country’s population. So the reason you want to do this is to give your firm and your profession overall, a competitive advantage.

A client pressure point is very important. And by the way, clients are much more diverse, often, than the people that are put in front of them. You need to better reflect your clients to better understand your clients, to access new markets. There’s also something about the legitimacy of all of our professions. We’ve seen this in politics. When people decide that actually politics is not for people like them, they disengage from it – they don’t see it as relevant to their lives. The legal system should be very relevant to people’s lives, but it’s in danger of reducing its legitimacy if it’s seen as just for a narrow few.

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