How often do we actually consider whether our organisation’s diversity and inclusion policy is merely paying lip-service to a wider societal narrative, or actually making a difference to the profession as a whole?
Have you ever stopped to wonder whether your organisation’s diversity and inclusion policy is merely paying lip-service to a wider societal narrative, or actually making a difference to the profession as a whole?
Much is made of ‘diversity and inclusion’ in professional firms. Where once it was not a priority for organisations to attract a diverse range of talent from different backgrounds and sections of society, now it is common practice for new roles to espouse how important diversity and inclusion is to their business.
Despite the increased emphasis on diversity and inclusion within the legal field over the past decade or so, the legal profession remains one of the least diverse of any profession. The Law Society’s 2021 Snapshot of the Profession shows just that. While 9.7 per cent of new lawyers with 0-7 years post-qualified experience are Māori, 6.9 per cent of the whole profession are against 17 per cent of New Zealanders who self identify as Māori.
More growth is needed for Māori and Pacific lawyers to be proportional to their communities. Collectively Māori and Pacific lawyers comprise 10.2 per cent of the profession, compared with the 24.6 per cent of the New Zealand population. Only 10 per cent of lawyers are Asian against 15 per cent of New Zealanders who identify as Asian.
So what are we as a profession doing to improve these statistics? Why does it matter? And what are we doing to bring in the next wave of practitioners who can better look, sound and advocate for all parts of Aotearoa New Zealand?
Why does it matter?
The age-old conversation about meritocracy and experience versus diversity is a bit of a misnomer.
Leading British firm Alpha Delta Psi uses the science of psychology to help leaders get the best out of diversity in their organisations. They say meritocracy and diversity aren’t mutually exclusive. “The notion that meritocracy and diversity cannot go hand in hand suggests that in order to increase diversity some degree of sacrifice on performance or suitability must be made to accommodate this. The message that is delivered is one that those not in the powerful majority are ‘lowering the bar.”
“The need to value employees based on their merit, rather than their gender or race, is essential to the success of any organisation,” leading consultancy firm Deloitte found in a 2019 study into diverse work places.
“However, simply applying the label of a ‘merit based’ process or ‘meritocracy’, will only devalue merit and encourage complacency.”
Vice President and Managing Director of intellectual property at IBM Global Claudia Brind-Woody said, “Inclusivity means not ‘just we’re allowed to be there,’ but we are valued. I’ve always said: smart teams will do amazing things, but truly diverse teams will do impossible things.”
The New Zealand approach
The flow of diversity in the legal profession has ramifications at both ends of the industry. A more diverse intake of new lawyers means the upper echelons of our profession begin to look and feel like modern Aotearoa New Zealand.
“A diverse judiciary is one which is reflective (in a general sense) of its society,” said Chief Justice Dame Helen Winkelmann.
“It will not then be seen as out of touch with that society, or risk the perception that it serves only one part of that society. The legitimacy of the judiciary rests upon the idea that the judiciary understands and serves all of its society. A diverse judiciary is also able to contribute the breadth of knowledge and experience to the content of the law. This is a collective effort. Each judge brings unique knowledge and insights, but together a diverse judiciary will build a common law equally fit to serve all of society. This is a critical part of the ideal of the rule of law – a law that applies equally to all.
“We serve a far more complex society than in the past – with more complex social relationships, economic relationships, and while our society has always been diverse, that diversity has grown. There is also increased understanding about who is coming into our courts and the disadvantages they have in terms of past trauma, cognitive and linguistic difficulty or cultural background.
“So diversity of experience, reflected in the judicial response to the cases that come before the courts, contributes to the strength and flexibility of judicial reasoning because it means that problems are looked at from more than one point of view.”
If there is going to be a more diverse bench, we need to start from the ground up. That means our pool of fresh lawyers needs to be more reflective of wider society. Two of our top law firms have programmes which target bringing a more diverse group of new lawyers into the profession.
Meredith Connell (MC) Chair Brian Dickey says “the legal profession has to reflect the community it serves – and historically it hasn’t, and it still doesn’t today.
“MC has a special responsibility, I think, to lead on making the profession better reflect the people it serves, given our role as Office of the Crown Solicitor at Auckland for more than 100 years.
“Our record over that 100 years is as imperfect as the Crown’s and the profession’s as a whole. But all the people of Tāmaki Makaurau need to be able to see themselves reflected in the MC of the future.”
Increasingly, New Zealand law firms are becoming more proactive towards diversity and inclusion-based outcomes to ensure they are meeting their obligations. Almost 40 per cent of the partners at DLA Piper New Zealand (DLA Piper) are female, and they have a range of initiatives, resources, targets and goals across their firm to increase diversity and support inclusion in the workplace for underrepresented groups.
“Every employee and partner has their diversity and inclusion ‘performance’ (in terms of their participation and engagement with our initiatives and values) measured as part of their performance review. There is little choice but to be involved in diversity and inclusion initiatives at DLA Piper – because it is a performance metric,” DLA Piper Managing Partner Laura Scampion says.
DLA Piper sets practical targets. “Our Diversity & Inclusion Committee ‘leads’ at DLA Piper review and moderate graduate applicants in order to ensure that those who are shortlisted reflect New Zealand’s diverse culture,” Laura continues.
MC is realistic about the challenges that face law firms in Aotearoa New Zealand.
“The first step is recognising there’s an issue, that it is multi-generational, and that it will take at least another generation to see the change that’s needed,” Brian Dickey notes.
“A good example is that it came as a shock to me to be told I was the first Crown Solicitor in a century to engage with Ngāti Whātua Ōrākei, the mana whenua of where we have had our offices for 100 years.
“And Ngāti Whātua Ōrākei has had good reason to hold grievances against the Crown, and MC as Office the Crown Solicitor – not least because of the events of the early 1950s and, in my lifetime, the late 1970s and early 1980s.
“So you don’t just rock up as the Crown’s lawyer and say “let’s start anew”. You have to accept it will take time – and that’s fine. Within the firm, our People Team have done a magnificent job beginning to recruit a much wider range of Aucklanders and other Kiwis to the firm, and all on merit.
“We’re majority women overall and will be 50 per cent women partners before long. And we are much more diverse in terms of ethnicity, sexuality, gender, socio-economic background and social and political outlook than ever before.”
Increasing the importance of Te Ao Māori and building structures which encourage more diversity are important to breaking down the barriers which exist for traditionally white, male dominated firms.
“Advancement at MC, especially in the Crown Specialist Group, is now dependent on being proficient in basic Te Ao Māori and being committed to becoming much more proficient over time,” Brian Dickey continues.
“We’ve engaged Chris Merrick as a consultant to help with that. All our Crown litigators must be able to stand up in court and introduce themselves in te reo Māori and my goal is to have 30 per cent with the confidence to conduct themselves in court in tikanga and te reo Māori. I think we will be there quicker than you might think.”
Starting at the bottom
To bring about a profession which encourages and brings in new practitioners from all walks of life, major firms are now setting up programmes to diversify their workforce.
Both Meredith Connell and DLA Piper have specific scholarship programmes which seek to bring in law students from backgrounds who wouldn’t ordinarily see law as a career option, let alone university.
“We responded to the Chief Justice’s call back in 2019. She said – and of course she’s dead right – that “the judiciary needs diversity of thought and you achieve that by having people from diverse backgrounds,” Brian Dickey said.
Meredith Connell set up their Te Kuhunga programme. Inspired by the Chief Justice, Te Kuhunga is unashamedly targeted at Year 11 to 13 students from decile 1 to 4 secondary schools in MC’s Crown warrant area in Auckland. The programme is focused on students who have been identified within their school as having the potential to become lawyers. MC has played a leading role in developing and supporting Te Kuhunga, with generous support from the Hugo Charitable Trust, Gilbert Walker, Stephen Hunter QC, University of Auckland and AUT.
Increasingly, New Zealand law firms are becoming more proactive towards diversity and inclusion-based outcomes to ensure they are meeting their obligations
“Ninety four per cent of law, medicine and engineering students come from the wealthiest two-thirds of households and only one out of a hundred from decile one schools. And the scholarships tend to go to people who may meet certain personal criteria but are in fact probably going to get to university and do well anyway.”
“So we wanted a “but for” test for Te Kuhunga – to target young people with potential who the stats suggest may very well not end up at Law School let alone a top-tier firm without it.
“We knew it could be a bit controversial, but we therefore unashamedly targeted Te Kuhunga at decile 1-4 schools in the Auckland area – although we are open to being approached by principals in other schools who have talented students who might also meet that “but for” test.
“We trust teachers, principals and students themselves to identify who would benefit.”
DLA Piper have a similar programme called Head Start. Its aim is to improve equality of opportunity and break down barriers faced by under-represented groups when entering the legal profession.
“To become a lawyer, the system in New Zealand is all geared towards the privileged. The odds are seriously stacked against anyone from a low socio-economic background. The Head Start programme recognises that the playing field is uneven,” Laura Scampion said.
Head Start supports secondary school students during their final year at school then through to university. The programme helps students who may not otherwise have an opportunity to gain meaningful insights into the legal sector. Through paid work experience at the firm during their studies, the students gain experience and form relationships that can assist them to realise their full potential.
“In the inaugural year of the programme in NZ, we targeted this programme at supporting Māori and Pacifica women into the profession given the current under-representation. In partnership with the Prince’s Trust, we engaged with Auckland Girls Grammar, a decile 3 school located in central Auckland. The school selected two students for the programme and they have now been with the firm (as Head Start students) for two years, having started university at the beginning of 2022.”
High Schools have played an important part of the success of both programmes. “This programme changes lives and the schools acknowledge that,” says Laura. Brian is similarly positive. “The schools have all been fantastic. They see students who are doing very well in languages and economics and history and speech and drama and so forth, but for whom Law School and being a lawyer is beyond their experience. In the end, the most important part is just bridging that gap in expectations, and that is what Te Kuhunga is doing.
“We start in the first half of the year by visiting schools and talking to small groups of students in years 11 to 13 about being a lawyer. I go if I can. But, increasingly, as MC has become more reflective of Tāmaki Makaurau, it is our younger lawyers in their 20s who take the lead. It’s our younger lawyers and support team that really does the heavy lifting for Te Kuhunga.
“In the end, the students have to do it themselves, but our mentors give them all the help they can to get through Law Intermediate – frankly the way lawyers have always helped their own children at university. This levels the playing field. And the mentoring relationship can go on through the rest of the degree.”
Charting a new course
Whether these programmes will create a major shift in the make up of the profession remains to be seen. More law firms need to engage like DLA Piper and Meredith Connell to ensure the next generation of lawyers are truly representative of Aotearoa New Zealand.
Both firms remain committed to the cause.
“Involvement, engagement and support of diversity and inclusion initiatives is a performance metric for employees and partners. Employees are rewarded for D&I engagement, not just their financial performance. Partners must play a part,” Laura Scampion says.
Meredith Connell’s Brian Dickey wants to see meaningful change. “If I had my way we wouldn’t use the terms “diversity and inclusion”. It’s not about being “diverse” – it is about being of the community we serve,” he says.
“And it is not a stale, pale, heterosexual cis-gender male like me saying “we want to include you”. It is about the fantastic young people we saw in our office the other week being the MC, the legal profession and the judiciary of the next generation.
“Previous Crown Solicitors wouldn’t recognise today’s MC and criminal justice system, and I will only have been successful if I don’t recognise them when I am an old man, retired back to Croatia or the Waikato or wherever, when I pay a visit back to the city.”
One thing is for sure – if the Chief Justice, Laura and Brian get their way, the legal profession will be a much more inclusive place to work and be a part of.