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Professional privilege

Professional privilege

Lawyers Weekly

Discussions about diversity on the bench, at the bar, and in the private and public sectors abound. Earning a place at the table is one thing, but it is difficult to assess exactly how level the playing field is for individuals to use their unique talents to climb through the ranks and lead.

Club Law: free entry?

Tune in to a live webcast of a Victorian admissions ceremony and you will see row upon row of new solicitors rise to their feet.

The voice of a judge’s associate announces each applicant’s name. It is an admirable effort when every third surname boasts some degree of difficulty in pronunciation. Confidently calling the list is a tricky task, but in 2017 a practitioner with a non-Anglo Celtic surname is hardly unusual.

Newly minted they may be, but these lawyers are not some vision of tomorrow. They are the faces of contemporary Australia.

There is some truth to the name that law has earned as one of the most conservative professions, but socio-political forces have spurred change over the years. Those forces have seen the faces in law admission ceremonies change too, reflecting the evolving mix of Australia’s wider community.

Women make up the majority of those who rise in the Supreme Court of Victoria to take their oath or affirmation, a trend that has persisted for more than 10 years and is comparable in every other state and territory. In 2015, 743 women were admitted in Victoria, making up just over 60 per cent of the year’s headcount for new lawyers in the state.

Two years ago, NSW Supreme Court Chief Justice Tom Bathurst AC lamented the “statistical silence of women” on the bench at a diversity event hosted by the state’s bar association. At the bar women make up only 10 per cent of senior counsel.

Today’s new lawyers can look to the highest echelons of the nation’s judiciary, in High Court Chief Justice Susan Kiefel AC and Victorian Supreme Court Chief Justice Marilyn Warren AC, to see that a sharp legal mind can take you to the very top, irrespective of whether you are a man or a woman. There is another role model in the 2017 Law Council of Australia president Fiona McLeod SC, a fierce advocate for the rule of law and gender equality in the profession, and a respected Victorian silk in her own right.

The very faces and names of some of Australia’s newest lawyers are easy ways to gauge the flavour of the modern-day profession because they are the most visible cues.

While imperfect as a measurable metric, they are a good indicator of the look and feel of the nation’s lawyers of today.

But the identity hallmarks of ethnicity and gender are barely capable of scratching the surface of the diversity narrative in law. When it comes to understanding the real grip the profession has on diversity, the conversation can quickly get esoteric.

Appearances of ethnicity and gender among the ranks of lawyers at an admission ceremony speak little of the varied hurdles each person standing in Melbourne’s Banco Court has cleared to earn their way through the door. The journey has been tougher for some than for others. But regardless, the path has been different for all. 

Here, we examine just a few of them.

Pushing past the gatekeepers 

Malcolm Kane is currently undertaking his Graduate Diploma of Legal Practice (GDLP). The former police officer and public servant turned 53 during his first year of law at the University of Queensland.

Today, he is 56 and faces the prospect of being a fully fledged lawyer within months.

He describes his law school experience as positive overall, but is candid about the practical challenges of managing the demands of a full-time study load later in life.

Making ends meet on Austudy and other small government subsidies was also a constant source of worry. Now, on the final stretch before he is set to qualify, he wonders whether he will ever practise.

“In the time that I completed my degree I had health issues, family bereavement, so there were personal matters that certainly made it very difficult at times,” Mr Kane says.

“But I did stay the course with the help of a close group of friends and other mature age students [and] I don’t think I could have completed the journey on my own, to be honest.”

When asked why he is doubtful about ultimately practising as a lawyer, Mr Kane is clear. Even if a prospective employer does not show outright discrimination due to his advancing years, he struggles to envisage his application being regarded with the same weight as that of a law graduate in their 20s.

He also acknowledges that while this view may not reflect how things actually play out in the hiring process, the perception is enough to dim his confidence.

“There’s still, in my mind, the thought that by the time I do gain admission I would be at least 57 years of age, and I’m really not sure what the prospects at that age would be,” he says.

“I’m also realistic and I understand that law firms that would probably prefer a younger graduate because they’ve got time, they’ve got years ahead of them, and maybe they can be moulded in a particular way. Maybe my life experience might be seen as being less flexible.”

The barriers Mr Kane perceives to be in his way are not imagined, but his concerns are complex. He says his views have been formed with his eyes wide open.

While the 56-year-old understands the competitive climate of the present job market in law, he hastens to add that failure to score work as a legal practitioner will not alter his regard for the value of his LLB. Whatever the outcome for Mr Kane, going back to university to study law has been worth it.

“No human resources manager is going to say that ‘We wouldn’t hire you because you’re too old’. I am well aware that they wouldn’t publicly say that because they can’t,” Mr Kane says.

“I wanted to improve my chances of employability. But I’m also mindful that I may never get to practise law; it’s not something that I’m hedging my bets on. And if I don’t get to practise law, then I’m not going to say that getting a law degree was a waste of time.”

The fact that a mature age student holds these concerns sincerely makes them real enough to be worth airing, because it speaks directly to the diverse talent and experience the profession could gain if all sorts of people felt welcomed at the gate.

Structural inequalities and building pillars for a new agenda

Solicitor Kingsley Liu takes the gateway metaphor further. As the NSW branch president of the Asian Australian Lawyers Alliance (AALA), Mr Liu has spent a lot of time pondering diversity in law and what can be done to encourage lawyers of Asian descent, in particular, to show their mettle.

“We need to ensure that the gateway to further advancement and career opportunity is kept open as much as possible. We need to widen the doorframe,” Mr Liu says.

“It’s also about encouraging and enlightening those that are outside the doorway to come to the doorway and to progress forward and have that support.”

Mr Liu is a fourth-generation Chinese- Australian who was born in Victoria.

During his time working with the AALA, he has focused on a diversity piece that is about more than identity politics. This has involved a program of events with the Women Lawyers Association of NSW to turn the spotlight on the different kinds of intersecting, multidimensional barriers that lawyers encounter at work.

Under Mr Liu’s leadership, the organisation’s NSW branch has also worked with LGBTI advocacy groups.

Mr Liu suggests that the diversity discussion has now matured to a point where every member of the legal profession should be empowered to step up and claim their rightful place at the table. Forums where the voices of Australia’s diverse legal community can be heard on matters they care about will pave the way for a more progressive culture shift in the space, he says.

“I want to see more engagement, where more people are speaking in forums and saying ‘I want this to happen’ and ‘I want to be involved here and there’.

“Diversity and inclusion is not just one brushstroke, however: it is more of creating a total painting,” Mr Liu says.

The fine art of curating culture

When it comes to diversity in the law, there is no one formula for effecting cultural change. Whatever the favoured approach, that kind of change cannot be expected to happen overnight. And if the extent to which individuals feel included is a fundamental measurement of progress, the desire for change has to come from all quarters: top to bottom, from the pinnacle of the judiciary, from within the ranks of the bar, and among all the new lawyers who stand shoulder to shoulder at their respective swearing-in ceremonies across the country.

After all, the case for diversity is that the whole is greater than the sum of its parts.

In the private sector, managing partners and CEOs are the thought leaders who are frequently deferred to for assessments of the diversity within their workforces.

Initiatives at some of the nation’s top firms show that monitoring cultural change in the workplace necessarily involves reducing big visions of diversity into quantifiable measures of impact.

Ashurst for example, has established regional gender targets with the goal of at least 40 percent of new partner promotions each year are women. According to Australia regional head Phil Breden the firm’s diversity and inclusion strategy has action plans for the promotion of gender, LGBTI, disability, resilience and multicultural difference. Every member of the firm’s board and executive team also has their own personal diversity and inclusion objectives.

At Herbert Smith Freehills the number of women in partnership is also a strong focus on its diversity agenda. The global firm says it monitors the gender mix of its leadership by also keeping an eye on the “partnership pipeline”.

HSF Asia and Australia regional managing partner Sue Gilchrist says a range of other interventions such as unconscious bias training and structural changes to better accommodate flexible work are underfoot. Late last year HSF also announced the launch of its Australian Ability Network, to support staff with a disability and those caring for someone with a disability.

Clayton Utz tracks the impact of its diversity action plan by analysing the number of its employees who opt into formal and informal flexible work arrangements.

Another measure of success on the flexible work front can be seen in the firm’s reduction in voluntary turnovers.

Mr Liu, who co-founded his own small litigation practice in Penrith, says he favours a more pragmatic method of “diversity principles-in-action” at his firm.

Although Mr Liu is not against formal diversity workplace policies as such, smaller business like his gain from what he calls a more inclusive process of cultivating culture. He admits that his approach may not be conventional but it works for The People’s Solicitors and even his AALA state committee.

“The idea of formalising, to me, is not where it’s at I think that you’ve got to live, breathe, walk and talk your stuff. It’s good to read it but I think that by the time you go and write it down, it’s sort of lost its point,” Mr Liu says.

“With the AALA NSW branch, I am also mindful of trying to develop a direction led from the grass roots. Any organisation involving the law tends to be driven by priorities top-down. But if you want to engender and endear change, you’ve got to create really nice revolutions that people can just jump on the bandwagon and feel good about,” he says.

A model of his own making

Brisbane lawyer Luke Furness is young member of the profession who lives, breathes and walks the drive for change he seeks. The talented 27-year-old began his legal career at Clayton Utz, where he has gained recognition as a promising young lawyer in its Queensland corporate and tax team.

Mr Furness has been a vocal advocate for workplace diversity, sharing his experience of being an openly gay man, at a number of firm events. He has also featured in two video series, one aimed at graduates who are thinking about applying to join the national firm and the other as part of ‘pride in diversity’ training materials for managers.

In the four years he has worked at Clayton Utz, Mr Furness says he has been supported and encouraged to pursue his interests and help the firm navigate the shedding of an old way of doing things. And although he does not characterise the former situation at his firm one that was anti-diversity, he says that the change is considerable.

“In the beginning it was a little bit tough. And that was not because of any bad experience, it was just a big unknown hovering over my head,” Mr Furness says.

In particular, he sees special committees and focused initiatives as offering explicit permission for people to be who they are. Without a culture that is vocal, clear and consistent about open acceptance of everyone, who knows what talent people will be too distracted to discover either too preoccupied with putting on airs or being afraid?

“It was really not until one or two years in when the LGBTI inclusion agenda really came on board that I discovered, happily, a lot of people in the firm are very supportive of it and the difference that it makes to your day is just incredible,” Mr Furness says.

Tackling great unknowns

When asked what unknown was cause for his particular concern, Mr Furness suggests that he was conscious of the views that older colleagues may have held. It hints at a similar disquiet that is presently percolating in the mind of Mr Kane about how his job applications for law jobs will be received on account of his age.

Mr Furness says that while his peers come from a generation who are, on the whole, more accepting of diversity, he was unsure if the conservatism of law’s senior echelons might act as a prejudicial club against him, or perhaps it would express itself in a more subtle form of ostracism.

“I think there is a little bit of trepidation as to what the generations up might think. It can be real or it can be perceived and think that’s a really important thing people should know; that sometimes it’s just a matter of your perception,” Mr Furness says.

“But if you’ve got no visible signs someone is supportive of diversity and inclusion, until you get that visible sign, you really just don’t know.”

Today Mr Furness sits on the LGBTI Alliance committee at Clayton Utz, which was formed in 2014. He is also the CEO of Out for Australia, a national organisation that delivers mentorship to early-career professionals in the LGBTI community. In order to meet the commitments of his high-profile position, and in part recognising the value that Mr Furness’ work with Out for Australia can bring to the firm, he enjoys the option of flexible work arrangements.

Clayton Utz has implemented key performance indicators (KPIs) for diversity, to help guide the way its management team. Part of that KPI framework includes a responsibly to champion flexible work. That aim also has the support of a dedicated National Flexibility Manager.

Lessons from the trenches

In a similar vein to Mr Liu, but speaking from the perspective of his own workplace, Mr Furness agrees that the different diversity and inclusion committees at Clayton Utz have been able to learn from each other’s experiences.

Mr Liu describes a growing dialogue between professional organisations and representative bodies as imperative to bring the voices of those who want to be heard to the ears of who really need to listen.

“When interest groups get cross-linkage with the law societies, bar associations and the Diversity Council for example, these groups are slowly knitting themselves together. I think that’s the fabric that glues everything together,” Mr Liu says.

“That is actually creating a fabric that I think is permeating to the wider environment.”

As an example of the benefits to be gained from sharing experiences with other interest groups at Clayton Utz, Mr Furness points to early challenges faced by the firm’s national gender equality initiative, Momentum. He says that in those difficulties encountered by the gender equality committee, he saw common roadblocks which the firm’s LGBTI Alliance has also faced.

Understanding and anticipating what those common challenges are can help speed up the change that newer groups aim to fire up. He also stresses the importance of having middle management on side to kick-start traction.

“You have to have executive buy-in first and then it also has to be felt at that line-manager level. Particularly because if you’re a national firm, change can’t just come from headquarters in Sydney or Melbourne or Canberra, it needs to be felt at that line-manager level as well,” Mr Furness says.

Ultimately, Mr Furness adds, all staff in the company benefit from a workplace culture that openly accepts and supports every single one of its people. Being able to “bring your whole self to work”, a phrase he believes posits diversity dialogue in a relatable and affirming way, because you know that you will be accepted for who you are. Knowing that is an elevating feeling, he says.

“When you’re a young lawyer you’re always thinking to yourself about your future. And life begins to look really uncomfortable if you just never know who’s listening, whether it be about a male talking about having a boyfriend, or a girl having a girlfriend.

“When you know the top-brass is supportive then it’s pretty awesome,” Mr Furness says.

Diversity: deal me in

The response from other industry leaders on matters of diversity are almost always positive: that it is a core priority, that it is being formally and actively fostered, that it is more than a box-ticking exercise.

Heartening as this is to hear, there is always a lingering uncertainty about what is real and what is hollow rhetoric. Indeed, that gap between positively motivated policy and the reality of the culture which plays out in open offices, well-resourced libraries and glossy kitchenettes is a challenge that is widely recognised as taking focus and time to overcome.

The issue speaks to values that go deeper than having a mix of staff that are both chosen for their jobs and valued in the office because of their contribution to the workforce. Fundamentally diversity and inclusion boils down to respect.
Jennifer Lanahan, who is Gilbert +Tobin’s diversity and inclusion manager in Sydney, says the firm is committed to creating an environment where its people feel comfortable and safe.

“Inclusion needs to be authentic. This has not been a challenge for us but requires dedicated focus to ensure we continue to demonstrate our commitment,” Ms Lanahan says.

Creating inclusivity is a core component of this strategy at G+T, elements of which come to bear through initiatives such as a working parents’ program (WPP).

The program, held jointly with another firm, supports new parents on staff to help them effectively juggle their career and carer duties.

“We are committed to providing and maintaining a diverse and inclusive environment and a culture which fosters and celebrates difference. We want our people to thrive and to do that they need to feel included and fully engaged,” Ms Lanahan says.

The capstone themes of King & Wood Mallesons’ diversity and inclusion program are LGBTI inclusion, reconciliation, gender equality, blind recruitment, equitable briefing and something called “agile working”.

KWM managing partner Sue Kench says that diversity and inclusivity demands accountability from those at the very top to gain recognition as a “strategic business priority”. In her view, diversity is not optional, it is fundamental. That means entrenching diversity and inclusion values in all forward-looking business action plans.

“It is important to promote understanding around why diverse teams and thinking truly matters, the importance of conscious decision making and how diversity can positively impact the ‘bottom line’.”

“Our culture has been eagerly adopted and supported by our cross-country management team, partners, employees and clients,” Ms Kench says.

A matter of fact

Some are less sold on the idea that law adequately offers members of the profession the basic respect that each person deserves. The issues tend to relate discrimination and harassment on one end of the spectrum and unconscious bias on the other.

Susan Moriarty, a workplace and anti-discrimination expert, runs a boutique practice that mainly focuses on the Queensland public sector. After more than 18 years working in law, she is sceptical about the industry’s true stance on diversity and inclusion. Her position is coloured both by her own experience, that of countless clients and also what many of her colleagues say out of work hours.

“It’s not a quick process but what happens is you begin to understand that basically the reality is contrived and it’s manufactured,” Ms Moriarty says.

“I’ve got too many colleagues who don’t conform to the Anglo-Celtic ancestral look or the extensive and enormously privileged private school background and they’ve got a whole lot of other stories from many firms that win accolades for their diversity and equal opportunity programs – but they live on level five of the Titanic, so to speak, and basically never get a chance to say what the true reality is. Frankly, these programs are marketing devices,” she says.

In 1989 Ms Moriarty finished the first graduate law degree to be offered in Queensland. Not long after, she was chosen as the chief political advisor to the state’s first Labor Attorney-General in more than three decades. That started a chain of events which would take her from policy positions in the public sector proper, working on administrative and freedom of information laws, all the way to Queensland’s Anti-Discrimination Commission.

During her public sector career, Ms Moriarty worked closely with a number of those she had studied alongside at law school. She recalls attitudes some of those peers held towards women in particular as demeaning and, in some instances, affronting.

While these experiences speak to work conditions in the public sector of one state several decades ago, they bear stark resemblance to a slew of allegations last year about sexual harassment against women in the law. Speaking about two occasions in which “violent” statements were directed at women as a response to their opting out of after work socialising, Ms Moriarty suggested that women in law have an archive of similarly insidious “war stories”.

“There were many low points I could tell you about – just the most outrageous misogyny masquerading as male entitlement and belligerence,” Ms Moriarty says.

In an explosive ABC investigation into the treatment of women in law last year, the Chairman of Harmers Workplace Lawyers said that incidents of sexual harassment are not assisted by hierarchical structures of power within firms and the profession at large. As a result, he said perpetrators continue to make unwanted advances and few victims dare to speak out.

The report exposed wide-ranging and serious allegations of harassment against female lawyers including claims of being “dragged into a stairwell and kissed” by a firm partner, and this direction from a barrister to his much younger colleague: “Go to my chambers, take off your clothes and wait for me”.

If a culture of true diversity and inclusion boils down to respect, these particular claims from 2016 taint efforts to cast the law as a one of the leading professional sectors in the space. Ms Moriarty does not hold back from her assessment of what she believes is really going on.

“Out there [employers] are masquerading as entirely reasonable people and understanding and very democratic and great for inclusive and all for equal opportunity. And yet up in the attic there’s all manner of things going on which is just really down-right ugly,” Ms Moriarty says.

The thing about barriers to equal opportunity is that so long as they are left unspoken, they remain invisible. And it is the hurdles which cannot be seen that will continue to trip us all up.

Has the legal sector done enough to foster the conditions needed to cultivate a profession that reflects true Australia? That is a hard thing to answer. The texture of diversity is complex combination of culture, values and business approach. Club Law is also a unique institution. Importantly, a conversation of change is being had at all levels of the legal profession and with candour. We hope that everyone is listening.

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