Should all firms have a equality and diversity (E&D) compliance officer?
23 November 2016 02:18 pm
Sophie Khan thinks they should
Since Liz Truss MP was appointed lord chancellor, being the first female to be appointed to the role and only the second non-lawyer, the lack of diversity in the judiciary and at the senior levels of law firms has come to the forefront. It is the first time that ‘diversity’ of the legal profession has reached such importance that it can no longer be ignored by the senior managers of law firms. Action to address the disparity in the employment and progression of ethnic minority lawyers is now a must, no longer a maybe.
For those of us who have been campaigning for a fairer, more equal and more diverse legal profession this commitment by the lord chancellor bolsters our cause and we should do all we can to assist her to make it a reality. But what of the roles of our professional body and our regulator in this ‘drive for diversity’? What part must they play in bringing about a change in the cultural fabric of law firms?
During my term as a solicitor member of the Solicitors Regulation Authority’s Equality, Diversity and Inclusion Committee I saw the void that existed in the SRA’s policy on diversity and the total lack of any comprehensive approach to challenging the status quo that existed at law firms.
To address this issue, I proposed that the SRA develop a policy to appoint a compliance officer for diversity, inclusion and equality (CODIE) to report on diversity, inclusion and equality issues experienced by their firm. This would be similar to the way the compliance officers for legal practice (COLP) and compliance officers for finance and administration (COFA) reporting on issues on legal practice and financial administration.
The CODIE would be responsible for the firm’s diversity, inclusion and equality policy and would be tasked with developing ‘good practice’ and initiatives in creating a fairer, more equal and more diverse workforce.
Although, the SRA did not take the proposal forward at the time, it seems that the SRA must now review its policy in light of the lord chancellor’s intervention and use its regulatory powers to ‘drive’ law firms to a position where ethnic minority lawyers become part of the fabric and future of their firm. In having a CODIE, who will be responsible for the administration of diversity, inclusion and equality, with the same reporting mechanisms as the COLP and COFA, the creation of a fairer, more equal and more diverse legal profession will become a reality for the first time.
A ‘diverse judiciary’ will inevitably take time but ultimately this cannot be achieved if our regulator does not recognise that a CODIE is the only viable route to make this happen.
On Friday, a report on the United States by the UN Committee against Torture offered clear evidence that Tasers are as lethal as firearms. In the cases of Hernandez and Franklin, both men were unarmed and tasered in circumstances where there was no real or immediate threat to the life of – or risk of serious injury to – the officer. The committee’s evaluation of the use by US law enforcement officials of stun guns – commonly referred to by the brand name Taser – calls on the authorities to “revise the regulations governing the use of such weapons with a view to establishing a high threshold for their use ... and subject to the principles of necessity and proportionality.”
In other words, the reputed non-lethality of stun guns is absolutely no reason for them to be drawn under vastly different circumstances than an officer would draw his gun.
In its annual report, Amnesty International found that, between 2001 and 2013, there were 540 deaths from police using stun guns. The weapons were also linked as a contributing factor in more than 60 other deaths, including the death of 17-year-old Darryl Turner, who died in March 2008 after being tasered in the chest for more than 40 seconds at the North Charlotte grocery store where he worked as a cashier. He suffered cardiac arrest and died at the scene. The subsequent litigation brought by Turner’s parents concluded that Taser International, which manufactures the weapon, failed to warn law enforcement officials of the risk of firing Tasers near an individual’s heart. The conclusions of the case were supported by May 2012 research from the American Heart Association. The report provided the first scientific evidence that Tasers (and other stun guns) can cause cardiac arrest and death.
It is a myth that stun guns are less lethal weapons capable of “saving lives” – and they do nothing to combat US law enforcement’s use of excessive force or racially discriminatory policing. In August, the UN Committee on the Elimination of Racial Discrimination urged police departments in the United States to stop using excessive force, and also found that black Americans were disproportionately the victims of police brutality.
In response to public concerns, officials in the United Kingdom are currently taking a critical look at British officers’ use of force.
Theresa May, the UK home secretary, ordered a national review in October after statistics suggested that a disproportionate percentage of victims of police Tasering “are from black or minority backgrounds”. The review is part of a wider transparency programme for the British police, which aims to curb the excessive use of force through increased scrutiny and training.
In the UK, there have been a number of deaths linked to stun-gun use, but none have been held to be caused by the weapon. May has asked Home Office officials and the national policing lead on Tasers to conduct an in-depth review of the publication of Taser data and the use of force by police officers, and those new measures are likely to see a reduction in the use of stun guns in the coming years. They ultimately help prevent any Taser-related deaths.
Rather than putting more weapons in more officers’ hands, the US ought to be considering a similar review. Curbing the excessive use of force is a good thing; it’s unclear why so many people think the way to do that is to provide alternate weapons for cops instead.
We need to change the way that black Americans are policed (and overpoliced), but we can’t until federal, state and local officials – indeed, officials across the world – acknowledge and take responsibility for the fact that police brutality routinely causes preventable deaths. It might be a shock to the system, but at least it won’t be a deadly one.
CV-blind policies are just one step in right direction
25 July 2014 Lawyers from diverse backgrounds are an untapped resource but more needs to be done to achieve equal footing.
Last week Lawyer 2B reported that Macfarlanes had joined Clifford Chance and Mayer Brown in introducing a CV-blind policy to recruit trainee solicitors (16 July 2014). This is welcome news and a step that needs to be embraced by all law firms, not just City firms.
The ‘business case’ for diversity was recently made out by Baroness Hale in her speech to the Law Society’s Women Lawyer’s Division and is further evidence that a diverse workforce should be seen as an asset to a firm.
Young ethnic minorities face inequality due to the unconscious bias that exists towards them during the recruitment stage. This hinders their ability to progress to the next stage of their careers as they may not ‘fit the image’ of the partners at the firm. Unlike first-time buyers, young ethnic minorities cannot join a ‘scheme’ to help them get onto the legal ladder. The CV-blind policy is an attempt to circumvent the bias and allow applicants an equal playing field to pitch themselves at the interview stage without relying on their background.
A similar initiative has been introduced for judicial appointments at the final selection process to address the lack of ethnic minority representation at the senior end of the judiciary.
The Equal Merits Provision will be used where two or more candidates are judged to be of equal merit and there is a clear under-representation on the basis of race or gender. The policy is said not to discriminate against non-ethnic minorities candidates. However, there is a risk that good candidates will not be appointed because of their race or gender or both and that cannot be in the interest of society.
I am unconvinced as to whether the Equal Merits Provision is the correct approach to address under-representation at the judiciary and I would not want to see this policy rolled out across the rest of the legal profession.
To challenge under-representation there needs to be frameworks to support diversity. The future leaders in law must be representative of society but selected on merit alone. The policy, practices and targets of law firms must ensure a consistent approach is adopted to achieve equal opportunities.
Alongside compliance and regulatory matters, there should be a mandatory duty to maintain a diverse law force.
Lessons should be learnt from the difficulties faced by other organisations providing a frontline service to the public. The Macpherson Report in 1999 found that the Metropolitan Police was institutionally racist. No steps were taken to change the status quo of the police service and as a result this led to a breakdown in trust and respect for the police. The Metropolitan Police is now trying to repair the damage caused and have launched a new recruitment policy to ‘reflect diversity’.
From this August the Metropolitan Police will only recruit new constables who have lived in Greater London for three of the last six years. The initiative which was championed by Stop and Search Legal Project, an educational project run by volunteer lawyers, shows that lawyers are leaders in equality and provide the solutions when it comes to confronting inequality.
The pale, male partners will remain the fabric of many firms but in others new faces will come to dominate the landscape. We must recognise the unique contributions that ethnic minorities can bring to our firms and take advantage of their skill and knowledge which cannot be taught. Lawyers from different cultural and religious backgrounds are an untapped resource. They can relate to a wider audience and contribute to the long-term marketability of the firm.
The movement for equal rights has begun but we have a few more steps to go before there is an equal footing for all who wish to enter the legal profession.
A range of new laws - such as flexible-working provisions and legal aid reforms - will boost the emergence of specialist practitioners.
The advent of a new right to request flexible working is more good news for specialist practitioners. The new provisions will provide specialists with a unique opportunity to trade on their expertise to secure flexible-working hours and explore new working arrangements such as consultancy and contract work.
It will no longer be in the power of law firms to dictate the number of hours their employees work in the office. This change will break down the established thinking that time is money, to expertise is money.
The legal experts will be the ones who call the shots and create a new working environment which recognises the value of skill and expertise to a case, changing the face of how traditional legal services are provided to the public.
In the long term this new approach will bring down costs of legal services as billable hours will be replaced by fixed pricing. Instead of billing clients for the time spent on a case, the client is billed for instructing an expert practitioner to run their case. Fixed pricing has advantages for both clients and law firms. For clients they know the up-front cost of the legal service they require and for law firms the recoverable cost on a specific matter.
The financial sustainability of law firms is a growing concern across the profession. Legal aid will soon become a relic of the past and if your firm is reliant on a legal aid franchise you need to start to look at alternative funding models such as damages-based agreements (DBAs) and ‘unbundled’ legal services.
There has been much debate about the workability of DBAs but in certain cases it is the only viable option and is not too different from the current arrangements that many firms are adopting under a conditional fee agreement. These firms still recover a success fee from their clients if the claim is successful. The success fee is deducted from their client’s damages.
It may be unpalatable to legal aid practitioners to take money from their clients but this is the future of legal funding if the case does not enjoy the protection of qualified one-way cost shifting (QOCS). The Civil Justice Council Committee has recommended the extension of QOCS to specialist areas of civil law. However, it will take several months for the recommendations to be implemented. In the meantime, firms need to secure finance to address any shortfall in income.
The Small Business, Enterprise and Employment Bill, introduced in the Queen’s Speech seeks to ‘make the UK the most attractive place to start, finance and grow a business’ and opens the door to alternative funding providers. As with the new flexible-working legislation the bill will end a monopoly and allow small firms access to finance.
This in turn should address the growing tide of litigants in person. If small firms have the resources to take on more cases on an alternative funding model then the number of unrepresented litigants will start to fall. Another way is to make the court system less adversarial in civil litigation.
This is the approach that has been suggested by the appeal court judges who handed down their judgment earlier this month on the interpretation of the Mitchell guidance. If this suggestion is followed it is likely to lead to more cases being resolved at an earlier stage of proceedings and save costs for the judicial system.
This should be music to the ears of Chris Grayling but it seems his attention has turned elsewhere. His recent campaign involves championing the cause of ‘everyday heroes’. The Social Action, Responsibility and Heroism Bill (SARAH) aims to protect such heroes who act in the interests of society, responsibly or heroically.
Many practitioners believe that SARAH is unworkable and will add unnecessary complications to legal proceedings and as a result increase overall costs. The resources being laden to create a new law would be better spent upholding the right to access the law.
It is in the interest of society, responsible and heroic to protect this right. Specialist practitioners need to embrace their new rights and protect access to the law.
Sophie Khanis solicitor director at Sophie Khan & Co
Niche firms will materialise to occupy emergent ‘advice deserts’.
The days when a firm’s name alone could attract new clients are long gone and the emphasis has moved to the expertise of the individuals employed to provide the legal services.
This is underlined by the Bellwether Report 2014: Brave New Worldpublished by LexisNexis, which identifies a ‘new breed’ of lawyers who are ‘networked, innovative, often niche specialists who’ve set up their business to compete directly with major industry players’.
‘The specialist practitioner’, however, is not a new phenomenon. More than 28% of legal practices are run by sole practitioners or sole directors – many of whom provide a niche legal service.
So what options are available to you if you are a specialist? Some of you will progress to partnership at your firms but others, like me, will set up their own firms in their respective area of specialism.
As law firms continue to merge or close, the demands for niche legal practices will rise to occupy the ‘advice deserts’ that have started to appear. The black hole that will be left by cuts to legal aid will also need to be filled by those who can provide a legal service on a cost-effective basis.
Niche firms have lower overheads and can provide a local and national service as they trade on their specialism, not their locality. This not only fills the gaps that are being left by the collapse of firms in big cities such as Birmingham and Manchester, but also addresses the unmet need that has been present outside London for a number of years.
Niche firms will work on a national level at lower cost, undercutting the prices of national firms and still be able to survive and thrive. It is no longer ‘the bigger you are, the better you are’. It is more like ‘the bigger you are, the harder you fall’.
The legal market is calling out for new entrants to fill the void and the Solicitors Regulation Authority is supportive of specialist practitioners setting up their own firms. There seems to be a movement by the regulator to encourage entrepreneurial lawyers to take the plunge and be the future leaders of the legal profession.
With the news that the SRA plans to reduce the minimum level of professional indemnity insurance cover from £2m to £500,000, there is no better time to enter the legal market and contribute to maintaining a profession run by legal practitioners. Even outcomes-focused regulation is friendly to niche firms.
It is easier for niche firms to manage risk to clients, the law firm and the legal profession if the firm is run by specialist practitioners. This could be because, with a risk-based approach, it is less risky to provide legal services through traditional law firm structures than business models that rely on private equity funding or branding of a large conglomerate.
These business models will need to generate a profit above and beyond that required of a niche practice.
The travails of the Co-operative Legal Services serve as a good example of the dangers associated with business models dependent on consumer branding and a reminder that legal services are not a consumer product to be bought and sold.
The long-term sustainability of the legal profession will be down to the entrepreneurial lawyers who have studied law, worked in law and are able to manage the law. They will be the ‘stars of the legal services revolution’ and their credentials outstrip those entrants which buy into law to generate a profit.
That does not mean that specialist legal expertise cannot be priced. Niche firms will be able to spearhead the value of a specialist service at a competitive rate, creating a benchmark to allow clients to compare rates between firms. This will ultimately bring down costs for specialist services and create a better service for clients across the legal profession.
The legal profession will start to adapt to these changes, but it will be the specialist practitioners who lead the way.
Sophie Khan on professional training and false securities
It is not every day that you get to meet the Commissioner of the Metropolitan Police in person. Since taking on the stewardship of the Met Police, Sir Bernard Hogan-Howe has had to manage a number of controversial police incidences and still make time to lead the 31,000-strong member force through the budget cuts. So it was a pleasant surprise that the Commissioner agreed to a meeting with the legal challengers he would normally face at court.
The meeting was arranged to highlight the issues faced by police action lawyers and their clients in bringing challenges against the Met Police and for the Commissioner to take back our message to the rest of his team. The Commissioner outlined the inherent “structural obstacles” in running a large organization and the difficulties in overcoming these to achieve real change in police culture. Training, supervision and accountability of his officers were at the top of his agenda. This comes at a time when one of the aims of the College of Policing is to develop a more professional approach to police officer training. The College last month published the first Code of Ethics for police officers and last week Rachel Tuffin, Head of Research at the College of Policing said that they wanted “to introduce formal CPD for police officers, which means we will be encouraging them to seek opportunities to improve in all sorts of ways – some of which would be in partnership with universities.”
The increased focus on professional training will assist the Commissioner’s mission for change and introduce a new way of policing, replacing the tick-box approach towards “evidence-based policing”.
This will see police resources deployed on specific police projects rather than on chasing targets and lead to better engagement with the public. So how does the use of body worn cameras fit into the new approach?
This month saw the launch of the camera trials across 10 London Boroughs. Five hundred police officers will be equipped with cameras for a year. The College of Policing will publish guidance on good practice but it will be difficult to see how the College will be able to enforce non-compliance with the guidelines when the on/off button is controlled by the device wearer. The cameras have been purchased from Taser International, an American company which is also the manufacturer of the controversial Taser stun gun. The recorded data will be stored to their cloud hub based in Arizona and accessed via a web-based management system.
It is unknown whether the Commissioner has explored the privacy issues of an American company retaining data on British citizens. But I hope he has obtained adequate safeguards to ensure that any data retained by Taser International will be deleted after 31 days in accordance with our rules.
We must not forget that the Commissioner does not have a mandate to introduce a mass roll-out of cameras. His reluctance to take views and opinions from outside policing circles suggests that his mission for “real change” is a myth. A statement from the Met Police at the launch of the trials stated that the trials were to find out “how to do it, not whether to do it”. There was no mention of public engagement even though the Commissioner was criticized for his failure to consult on the mass roll-out of Tasers by the London Assembly’s Police and Crime Committee last October in their report on Arming the Met: the deployment of less-lethal weapons in London.
Public engagement for one will not cost millions of pounds. If a link can be forged with community leaders and activists about policing issues in their communities then rebuilding public trust can start to begin. Having said that, sitting in a room with glary-eyed lawyers couldn’t have been easy for the Commissioner. Now his team need to do the same sans the lawyers.
My message to the Commissioner is not to put his faith in a gimmick. Cameras are not the solution. They are a false security and should be reserved for specific projects which depend on video evidence.
If his mission is truly to see “real change” in police culture then he must allow the professional development programmes to take their course and let the evidence judge the camera.
Solicitor Director at Sophie Khan & Co Solicitors and Higher Court Advocates specialist in actions against the police. Email: email@example.com
I am a solicitor-advocate, specialising in actions against the police, public law, inquests and civil liberties and human rights at Sophie Khan & Co. Solicitors and Higher Court Advocates @SophieKhanSols, which has offices in Leicester and Wimbledon Village, London.
I am also the founder of the Police Action Centre, @policeactioncen the first charitable organisation dedicated to providing a free and independent general advice service to members of the public on complaints against the police and a campaigning hub to challenge discriminatory policing tactics.
As well as a writer.
I write about legal and socio-legal issues for legal publications and national newspapers. I have four blogs; one on socio-legal issues, another on my publications, thirdly a blog on police and the law and fourthly a blog on the use of Tasers.
Twitter: @khan_sophie & @taserlawyer
Email: firstname.lastname@example.org & email@example.com Mobile : 07702 999 638