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The Pacific Lawyers Association's viewpoint

31 August 2018

The Pacific Lawyers Association was established in 2001. It has a focus on promoting fellowship and mutual support among Pacific People, identifying and responding to the legal needs of Pacific communities, and promoting and conducting research on any issues of relevance to Pacific lawyers and Pacific people. LawTalk put three questions to the Executive Committee of the Pacific Lawyers Association which relate to the experience of Pacific lawyers in New Zealand. They responded as follows:

From your observations and experience, are there any barriers to success or personal fulfilment standing in the way of someone who is a lawyer from a different ethnicity to “NZ European” or “Other European”?

The legal system in New Zealand is based on a European system, and while it has grown over time to increasingly reflect the uniqueness of New Zealand and its people, it inevitably continues to have its roots firmly grounded in a European dominated culture. This is reflected in recent statistics of the diversity of New Zealand based lawyers which show that “European and other” make up almost 90%, whereas other ethnic groups make up no more than 6.5%, with one group as low as 0.8%. These results do not reflect New Zealand’s working population. The cultural make-up of partners in law firms, Queen’s Counsel and the judiciary have similar disproportions. Cultural diversity is a well-used phrase, particularly in the legal profession. However, whether it is reflected in practice is questionable.

As minorities in the legal profession, lawyers who are not “NZ European” or “Other European” will almost always face challenges associated with being part of a minority group within a European dominated profession.

One of the first challenges faced by non-European lawyers is entry into the legal profession. For many, they are the first in their families to attend university, let alone become lawyers. The knowledge that is passed down from one generation to the next about how the profession operates is lacking. The relationships that one might be able to call upon to move into that space is non-existent. It is often these “connections” that allow some to move ahead faster and more freely than others. The saying “it’s not what you know, it’s who you know” holds true in the legal profession.

Breaking into these spaces is often a daunting and sometimes demoralising experience which can put people off pursuing opportunities and this line of work altogether. For instance, there is often a perception among law graduates of minority ethnicities that large law firms are intimidating and hard places to work in. Others believe that the values of large law firms do not align with their own. Once in these roles, non-European lawyers face further challenges. Perhaps an obvious one is cultural difference.

Culture is the foundation upon which a person bases their identity. It guides how they conduct themselves and how they make decisions as they move through their lives and careers. As an example, Pacific Island cultures are based on family, community and church. Pacific Islanders pride themselves on working collaboratively for the collective and looking after one another rather than being individualistic and openly competitive. One of the defining values of Pacific Island cultures is humility. This cultural difference may manifest in the workplace, for instance, in someone not taking ownership for value added to a specific project, or perhaps someone not putting their hand up for a new and challenging project for fear or avoidance of appearing grandiose. Experience in the legal profession shows that part of what it takes to succeed in a legal career is acknowledging and taking greater ownership of one’s successes, as well as being comfortable in self-promotion when the situation calls for it. To reconcile this disconnect between cultural values and the demands of succeeding in a legal career, a Pacific Island lawyer must redefine their cultural values as they have always known them.

Another key barrier is time. From a Pacific Island perspective, family, community and church commitments must be managed in addition to the usual workload as a lawyer. Families are often much larger than the two-point-something national average, family events involve the extended family, and often the family home is also called home by more than just the immediate family (noting crowded housing is the worst among Pacific Island peoples). Especially if you are the first in the family to attend university, there is no benchmark upon which the demands of law school and a legal career can be compared to. Younger generations in particular are looked upon to support older generations, both in the home and financially. In these circumstances, being unable to commit to putting in additional time is a barrier to career progression that other lawyers may not face. Despite the inherent issues with this, and the fact that many law firms claim to have a culture of “work life balance”, it is well known that putting in the long hours is one of the ways to get ahead and prove your worth to your employer.

A lack of visibility and diversity in the legal profession allows unconscious bias to prevail in these spaces, which is another, more inauspicious, barrier. Unconscious bias is something that firms are actively trying to tackle of late. While it is perhaps almost impossible to quantify, it is incredibly pervasive. Importantly, it is acknowledged that unconscious bias is not simply limited to skin tone, ethnicity and cultural background. Without significant change, unconscious bias is something that will exist for a long time as a challenge for non-European lawyers as they progress in their careers.

If there are, what can be done to address and demolish these?

Increased cultural diversity will promote cultural awareness and a greater appreciation and respect for cultural differences. In turn, this will facilitate equality and fairness which are key in overcoming barriers to the success and personal fulfilment of non-European lawyers in New Zealand. The New Zealand population is becoming increasingly culturally diverse which calls for a similar trend in the legal profession in order to best serve the community. A profession made up of lawyers that understand respective cultures, values and context can only be beneficial.

Improving cultural diversity and visibility in the workplace is the starting point. As a first step, this requires having robust recruitment procedures in place that ensure diversity and a conscious effort to attract non-European lawyers to these positions. Some strategies adopted by firms and organisations include making it clear that they intend to encourage and attract diversity and practicing blind recruitment procedures. Others partner with organisations that focus solely on supporting non-European lawyers entering the workforce by providing training and mentoring, followed by the establishment of a platform by which they can connect with potential employers.

Diversity in the workplace is, however, only the first part of the equation. Lawyers can be educated on cultural differences but the true benefits are derived when that is consciously put into practice. The second part is thus creating an inclusive workplace. This step is just as important, if not more so, than the first step. An inclusive workplace is one that values and embraces individual and group differences. Inclusion is what integrates diversity within a firm’s cultural fabric and on a larger scale, the legal culture in New Zealand.

Firms are often criticised for taking measures in order to simply “tick the diversity box” without any real follow-through. Being able to take the next step by incorporating cultural differences into a firm culture that embraces these differences is the telling part and perhaps too, the most challenging. Measures of inclusion may involve the firm webpage, the physical set-up and d├ęcor of the office, through to firm policies and strategic plans. Inclusion will facilitate retention of diversity, which in turn allows for quality. Having diversity at the partnership table or the directors’ table is where the true influence of diversity becomes evident and where the real benefits flow. However, this quality is not achieved without retention. Retention is largely influenced by firm culture and on a wider level, the culture of the legal profession.

All members of the legal profession have a responsibility in facilitating diversity and inclusion in the workplace, particularly those who are in decision-making roles. It is crucial that diversity and inclusion is initiated at the top. Those in management and leadership positions have the ability to drive the direction of the firm’s culture, to hinder or support certain strategies. This influence is captured in the phrase “trickle-down management”. Those in management and leadership positions therefore play the most important role when it comes to a firm’s success in diversity and inclusion. Diversity and inclusion need to be backed by firm policy, which then allows for strategies and plans that must be actively followed, monitored and reassessed as needed. Diversity and inclusion measures should develop together with, as part of, the firm’s culture and strategic direction, rather than alongside it.

Greater diversity and inclusion in legal workplaces would facilitate greater role modelling for upcoming and less experienced non-European lawyers. It would also provide greater opportunities for mentoring, which would be particularly helpful for law graduates facing the hurdle of entry into the workforce. One way this may be facilitated is by a listing of those who are willing and able to be mentors for non-European students and young lawyers. Shared experiences from those who have gone before and found success or fulfilment will benefit those coming through and yet to come through. Improving connections between European and non-European New Zealand lawyers, organisations and associations would also have significant ongoing benefits.

The first Pasifika member of the judiciary was Judge Epati in 2002, followed closely by Judge Malosi in 2002. It was not until 14 years later that Judge Moala and Judge Wharepouri moved to the bench. As yet, there are no Pacific Island judges in the High Court or above and no Pacific Island lawyer has been awarded Queen’s Counsel in New Zealand. Improved diversity in these spaces will flow when greater diversity is achieved first, by recruitment, and secondly, by retention.

A greater awareness and appreciation for cultural differences, a greater presence and visibility of diverse cultures in the workplace, and improved connectivity among cultures will have significant benefits in career advancement and personal fulfilment of non-European lawyers in New Zealand.

There is also an increasingly diverse population of people who are or who become clients of lawyers. Do you think New Zealand lawyers (of any ethnicity) are adequately prepared to meet the needs of different ethnic groups?

Significant progress has been made on this front in recent years. Ongoing professional development with a focus on improving diversity and inclusion in the workplace is certainly encouraging. However, a lot more can be done to adequately prepare New Zealand lawyers to meet the needs of different ethnic groups. More professional legal education is required around how New Zealand lawyers of all backgrounds can better serve and meet the needs of a culturally diverse range of clients. A greater push to move away from a “one size fits all” approach in the legal profession towards a system that is tailored to meet the needs of an increasingly diverse population is necessary.

A simple starting point is correct pronunciation. It is important to make the effort to say a person’s name correctly and if you are unsure, to make an effort to find out. A person’s name is the first part of their identity. Correct pronunciation is a simple gesture but can convey a great amount of respect and make for more effective communication. Similarly, it is important to speak to clients in a language they understand – not necessarily their cultural language, but in a dialogue in which they can fully comprehend.

A lawyer’s background, values and experiences will impact the quality of the legal services they provide, including how well they can advocate for clients from different cultural backgrounds. A well-rounded approach provides for better-informed and more effective advocacy. New Zealand lawyers must make a conscious and concerted effort to improve their cultural awareness and understanding, and make a commitment to work on any prejudices or biases they may have. It is always important to respect a client’s cultural, religious and spiritual beliefs and values, whether we agree with them or not. We will all be better advocates for it.

As members of the legal profession, we each have an important role to play in the movement towards greater diversity, inclusion and appreciation of cultural differences.

Executive Committee members

Tania Sharkey (President), Carolina Tiumalu (Secretary), John Gandy (Treasurer). Akatu John, Harry Toleafoa, Jessica Pridgeon, Lena Wong, Maggie Winterstein, Panama Le’au’anae, Stephanie Philcox.

Last updated on the 31st August 2018