Careering ahead
Date: 12 June 2009
Authors: Clare McConnell
Issue: Vol 159, Issue 7373
Categories: Features, Employment
The Legal Services Act 2007 (LSA 2007) has brought about a full-blooded revolution in legal services regulation. It is, in the words of the Legal Services Board (LSB), the new overarching professional regulator, to whom The Law Society and the Solicitors’ Regulation Authority (SRA), its regulatory arm is responsible, “a milestone in legal regulation”. But what does this milestone promise for women solicitors?
The new regulatory landscape
The first thing to say is that the changes promise a more rigorous regulatory approach to ensuring that the profession becomes more diverse at all levels, rather than simply at entry level which has been the primary focus to date.
The LSB is placed under an express obligation (LSA 2007, s 3) to act in a way, so far as reasonably practicable, with the regulatory objectives set out in LSA 2007, s 1. These regulatory objectives are: protecting and promoting the public interest; supporting the constitutional principle of the rule of law;
improving access to justice; protecting and promoting the interests of consumers; promoting competition in the provision of legal services; encouraging an independent, strong, diverse and effective legal profession; increasing public understanding of the citizen’s legal rights and duties; promoting and maintaining adherence to the professional principles.
Equally, as an approved regulator, The Law Society (and for that read the SRA) must act in a way which is compatible with the very same regulatory objectives and in a way which it considers the most appropriate for meeting those objectives (LSA 2007, s 28(2)).
Furthermore in respect of approved regulators the LSB has, under ss 31, 32, 35,37,41 & 45 of the LSA 2007, powers: to set performance targets for them and to direct those regulators to take certain steps to counter the adverse effects that any of their acts or omissions have had in respect of achieving the regulatory objectives; to censure and impose financial penalties on approved regulators and to intervene in the carrying out of regulatory functions; and to recommend to the lord chancellor that the approved regulator has its regulator status removed.
While the LSB has these powers and responsibilities to ensure the Law Society acts consistently with the regulatory objectives, it appears equally correct to see the LSB itself as discharging a public function and as such arguably susceptible to judicial review proceedings should it fail to act consistently with its duty to act consistently with the regulatory objectives.
Improving the legal landscape for women solicitors
In respect of improving the legal landscape for women solicitors, but equally black and minority ethnic solicitors too, the LSB’s introduction and its commitment in its 2009–10 business plan to, “promote equality” is welcome.
In its plan, the creation of a legal profession which is culturally diverse and one where entry into it and progression in it is based on merit and ambition is seen as desirable as it is part of the wider access to justice agenda. Additionally however, promoting a diverse profession will help the LSB meet one of its regulatory objectives of improving access to justice.
Improving access to justice
The LSB considers that, “access to justice is facilitated by a legal profession that: ever more closely matches the cultural diversity of the UK”; and which, “actively works to overcome discrimination and disadvantage in its own working practices and cultures, going beyond its statutory obligations”. For women solicitors, this presents a real prospect for change should the LSB grasp the nettle and promote the implementation of measures which do indeed change the culture of the legal profession.
If done correctly the LSB could promote measures which would be of mutual benefit to women solicitors and their employers. Measures could be implemented to require law firms to find solutions to the complex issue of pay discrepancy which exists between male and female solicitors which currently, on the basis of the 2009 Law Society survey, shows a 6% gender pay gap.
Such measures could be a win-win for women solicitors and employers alike as women who receive proper remuneration will be less likely to leave the profession and employers will benefit from retaining such legal talent and avoiding additional recruitment costs.
Additionally there are four other regulatory objectives set out in LSA 2007, s 1 which provide encouragement for women solicitors: the requirement to protect and promote the public interest; the requirement to support the constitutional principle of the rule of law; the requirement to encourage an independent, strong, diverse and effective legal profession; and the requirement to promote the interests of consumers.
It is, for instance, clearly in the public interest that the profession as a whole ensures that women solicitors are not just well-represented, as they are at entry level, where 60% of new entrants are women, but that they are equally well-represented at all levels of the profession.
Currently this is not the case as the total number of women partners for example has since 2003 remained between 21% and 23%. Only in this way can the profession truly be one that not just encourages its independence, strength, diversity and effectiveness but turns that encouragement into concrete reality.
Women solicitors can be encouraged therefore by the fact that LSA 2007 has introduced a regulatory system which, much more than was the case previously under the Solicitors’ Code of Conduct, requires LSB and the Law Society as regulator, to take concrete steps to ensure that the profession is truly representative at all levels.
It is no longer the case that the continuing lack of representation of women solicitors at the highest levels of the profession can be acquiesced in by the Law Society, and now also the LSB. Discharging the regulatory objectives will arguably require both the LSB and the Law Society, through the SRA, to ensure that the challenge posed to the profession, that it retains its talented women solicitors and properly promotes them, is a challenge that is won. The tools are there for the regulators to use.
Tools for change
Consumer interests are very much at the forefront of the new regulatory regime and like all the regulatory objectives should significant numbers of consumers not get what they want then the LSB could censure the Law Society or direct it through the SRA to take remedial action to address the issue.
From the perspective of the corporate purchaser of legal services there is a real demand, led in part by shareholder requirements, to ensure that their legal service suppliers offer a diverse legal advisory team and one which ensures equality of opportunity for women solicitors and others. One need only recall the approach taken by Tycho when selecting their legal panel.
They required a commitment from their legal providers to ensure that they would develop and promote women solicitors and that by 2009 those providers would aim to have 25% of female partners within their organisations. The exercise of such consumer power will be highly persuasive and hopefully will help deliver real improvements in the position of women solicitors.
Potential of performance targets
Finally, in respect of the fulfilment of all the LSA’s regulatory objectives one should not underestimate the potential of setting performance targets, which LSA 2007 permits, as a tool for change and a way of improving the position of women solicitors in the profession.
This can arise in a number of ways. Before any performance targets can be set good practice dictates that an assessment needs to be made of the current position. Once the current benchmark has been established an informed discussion can be entered into as to what improvements need to be made and specifically what targets need to be identified for the legal profession to aspire to in order to ensure that the LSA’s regulatory objectives can be met.
Simply carrying out this initial assessment on the position of women solicitors in the legal profession would be a significant step down the road of helping to promote equality of opportunity. There has been no recent assessment of the combined effects of women’s career structure, remuneration, job satisfaction and their employers’ requirements. These need to be viewed together.
The most effective targets and solutions are ones where the individual woman solicitor and her employer can see a commonality of interest as in, for example, the promotion of flexible working. Implemented correctly this allows a woman solicitor to balance her work and home responsibilities appropriately while at the same time engendering a sense of loyalty to her employer which will undoubtedly be reassured that it will be able to retain good female talent within its organisation.
The LSB could require the SRA to make such an assessment as a precursor to identifying if performance targets are required. It could be done relatively easily with additional questions being asked of solicitors at the same time as their practising certificates are renewed. Those without certificates could be the subject of a separate questionnaire and employers could be questioned similarly.
Once the information had been collated it could form the basis of a consultation exercise across the profession on what key performance indicators need to be identified and implemented to promote equality of opportunity for women solicitors and other minorities in the profession.
The future
LSA 2007 has changed the regulatory landscape and the effect of the overarching regulatory objectives is only now beginning to be felt. These objectives, however, have the potential to be put to good use and improve the position of women solicitors.
Yet we cannot be complacent. We should not underestimate the Herculean task which the new regulatory regime has to influence and help reshape the way in which our legal system operates. It will take time and we need to ensure that time does not become an excuse for a lack of any real improvement in the position of women solicitors in our profession.
Dr Clare McConnell, chairwoman, Association of Women Solicitors and partner at Stephenson Harwood. E-mail: clare.mcconnell@shlegal.com
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