Diversity continues to be a hot-button issue in the legal profession – even as female lawyers dominate the lower ranks of firms, they remain under-represented at partner level and at the bar. As the profession becomes more aware of the importance of a diverse workforce, what needs to change to achieve greater inclusivity?

Lawyers Weekly and DLA Piper teamed up with some high-profile members of the profession to look deeply into diversity issues, including parental leave, business pressures and extending diversity beyond gender.

PANEL MEMBERS

JRM: Justice Ruth McColl, judge, NSW Court of Appeal

AR: Alexandra Rose, senior manager regulatory affairs, IAG

MP: Michelle Painter SC, barrister, St James Hall

LA: Larissa Andelman, barrister, 15 Wardell Chambers and chair, Women Lawyers’ Association of NSW Workplace Practices Subcommittee

RT: Reynah Tang, partner, Johnson Winter & Slattery, and president, Asian-Australian Lawyers Association

GB: Gitanjali Bajaj, partner, DLA Piper

RM: Rob McMaster, senior associate, DLA Piper

PT: Phillip Tarrant, managing editor, Lawyers Weekly

PT: What is the perception around taking paternity or maternity leave within firms?

LA: Most law firms have very generous parental leave policies – up to 20 weeks for both primary and secondary caregivers – and these policies have been in place for a long time, over 10 years. The interesting thing is the men are not using these policies, so it’s a question of ‘why not?’ One of the key issues is the thinking that ‘If I use this policy my commitment to work will be questioned, or it might impact on my career path’.

GB: I agree that one part of why they don’t take it up is the perception of what may happen if they do, but I think there’s also a question of whether men even know that it’s available to them. So it’s about getting the message out there that parental leave is actually available to men. That messaging has to come from management and then management has to be ready to give it to them.

JRM: I’m really surprised the first issue we’re addressing is about men, and men taking parental leave. I agree that parental leave is an important issue, but I thought this roundtable was still going to be addressing achieving real gender diversity in the legal profession. I hate to say it but that’s not about men, that’s still about women.

GB: I do consider though, coming in from a different generation, that it is now a structural change issue. I think if you widen the question and make it about men and women and forget ideas like ‘men taking it off would be a role reversal’, then you’ll wipe out the assumptions that it’s only women who take leave and it will lead to a structural change.

JRM: The debate started back in the 50s when women started trying to scratch on the door of the legal profession. When I was at the bar there were women who when they wanted to have children just left the bar; they just could not see how it could work. So there’s been the most remarkable transformation in that area in terms of supporting both men and women to facilitate them being able to have children and continue to work in the profession. Those women who started trying to get into the bar back in the 50s would be amazed at what’s available in the legal profession now.

MP: The problem for a lot of women is that if they want a family, they are making those decisions at around the time they are starting at the bar or are just young barristers, so it’s tricky timing. Also at the bar we are all sole practitioners. We all call it ‘leave’, but we don’t get leave, we just don’t work for a while. What happens is once you return from leave you suddenly find you’re not getting offered the work you were offered before. People assume you’re not available after 6pm, whether you are or not; they assume you’re not available for long trials whether you are or not; they assume you’re not interested in these difficult, grinding cases that take months to prepare and run, whether you are or not; they don’t ask, you just don’t get the brief.

GB: The dilemma in private practice, which is similar but slightly different to women at the bar, is that we have the producer/manager dilemma. It’s not just about producing work as a partner, but the management of the team takes or requires a lot of face time. So if you are trying to shift back on a part-time basis, which most people do, it becomes a similar question in terms of building your practice up so that you can manage it.

MP: One of the ways women barristers deal with it is not to broadcast that they’re expecting a child. At a certain point it’s difficult to hide physically.

GB: I’m seeing a really positive change and it comes from who is briefing us in-house. There is a rise of in-house female counsel and it’s actually led to a great improvement in law firms. The rise of women in in-house roles has actually, for me, helped change the question for female partners in private practice firms.

AR: IAG has announced a partnership with the Victorian Bar Association, but I think the practical reality is that the majority of the briefs are coming from the private firms.

RT: In-house counsel has a lot of control and if in-house counsel actually starts putting it into the terms of their panel tenders that there are reporting requirements, then that starts to change behaviours of the firms and can result in improvements.

MP: What we’re being told when we talk to law firms and in-house teams about how we can help you brief in an equitable way is that the lawyers from the firms often say we would find it easier to brief in an equitable way if our clients required us to do it. So I think the next frontier is working with clients who are leading the way in Australia with diversity in their own workforce, and for them to make it a condition of the tendering. Then the client helps the lawyer to help the barrister and hopefully we see some real progress.

It’s slow and the frustration I have is that I’ve been a lawyer for 25 years and we are still being told it’s a generational thing, it’s structural, it’ll take time. Well I am so sick of waiting.

GB: Most firms have unconscious bias training, most firms have a female program, so we’ve reached this point where we’re giving all of this but female senior associates still aren’t making partner. That’s why the debate has changed to: What if we changed the question? What if we make it an equal-equal question about men and women? Completely eliminating the assumptions of what roles are – if you don’t have that assumption, you might not actually have the bias.

AR: I think it’s more flexible in the in-house environment to be able to take maternity leave and come back. Part of that, I think, is some of the Australian companies are particularly supportive towards their employees and they want to retain the talent. Part of what we do on a daily basis is making sure we’re not irreplaceable and there are processes and procedures in place so that if something happens, the company simply carries on.

RM: When the subject [of me taking parental leave/working flexibly] was first broached with my supervising partner, it was very warmly received and actually came through a joint conversation. As for other colleagues in the firm, they are extremely supportive, particularly amongst my male colleagues. I think they don’t have a lot of examples of that happening around them – the more they actually see this happening within the profession, the more it will be seen as the norm for them.

RT: You need to have role models. I remember at a previous firm we got approached by the media asking for someone to do an interview about men and flexible working. All of the partners who were on that arrangement refused to speak to the media because they didn’t want to let their clients know they were actually not in the office five days a week. If you don’t get the message out, then you’re not going to be able to change expectations.

PT: How can the structures the industry builds to facilitate a flexible working environment translate into business success?

GB: I think if we can get away from billing six-minute units that could actually make a whole lot of change. That means moving away from looking at time spent but instead the results gained. Time billing is not actually how we would measure someone’s work – we’d measure with a value of what they produced, not the time they put in. And clients are always happy to move away from the rigid billing of law firms. They like us to move and give them a bit more of a flexible option.

AR: This is an issue that’s been around for many years – that the six-minute cycle really rewards the slower, less efficient lawyer. In terms of the more complicated pieces of work, we need certainty in terms of financial billing and it’s not on a six-minute basis. I think most in-house lawyers are working in flexible environments and they would encourage their law firms to also adopt flexible situations.

PT: How can greater inclusiveness outside of gender help us deliver better work to clients and create a better working environment?

RT: I think the idea of diversity of thought that you can get by having people with different life experiences is part of what a lot of firms have been looking at. Earlier this year we released data that looked at the level of AsianAustralian participation in the industry and what we found was at the firms of 10 or more partners, about 3.1 per cent are Asian Australians. At the bar it drops to 1.6 per cent, and by the time you get to the judiciary it goes down to 0.8 per cent. It all flows through, it’s all inter-connected in some way.

MP: We’re seeing more Asian lawyers coming along to be barristers, certainly anecdotally there seems to be more around now than there were when I started 17 years ago. A diverse and representative bar and judiciary is a better thing for Australia. Ultimately, if the only vision of justice being advocated and determined in the courts is that of middle-aged white Anglo privileged men, that’s not what Australia is.

LA: I think the business case has been made in 2015 that there is a benefit from equity and diversity. So what’s going to be interesting next year is how the legal profession moves to implement that. It’s actually the external pressure from the legal profession that’s coming through that will require us to change because our clients are saying, ‘where are the women, where are people from non-English speaking backgrounds?’ We want to see our reflection in the legal profession.

PT: What are your observations for the past year and predictions for the year ahead?

JRM: I’m very encouraged to hear that clients in particular are also now very focused on making sure they see diverse representation. At the same time, nobody can afford to be complacent. You can’t just rely on the clients; everybody has to stay in touch with the fact that diversity is going to be an issue for a long time.

MP: There are more than 400 men silks in NSW, but there are 37 women silks. That’s a starkly different number. Until those numbers are much greater in terms of women at senior levels, the structural change and the feeding to the judiciary in equal numbers just can’t happen.

AR: I think diversity and flexibility in practice continue to be very important issues. I also think there are far more interesting and innovative initiatives being developed to promote these and I think we’ll continue to see that.

GB: I believe we need a structural change in our cultural DNA towards what a role is and what the assumptions behind roles are. In terms of diversity at a broader level of ethnic diversity and LGBTI issues, I want to stop using the word diversity and start using the word inclusivity. With inclusivity, people don’t stereotype it to be about gender. If we say inclusivity, I think that will just expand and increase the debate and we can make a difference there.