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The Singapore Law Gazette

Diversity and Inclusion in the Legal Profession

Lawyers are typically wary of new management trends, but having a diverse workforce who feel included promises measureable benefits to firms in staff retention, engagement, creativity, innovation, productivity, client attraction and reputation, as well as being the right thing to do. Legal professional bodies including the Singapore Corporate Counsel Association are developing pledges and charters for firms and clients to commit to diversity and inclusion initiatives.

What a man dislikes in those who are over him, let him not display toward those who are under him; what he dislikes in those who are under him, let him not display toward those who are over him! This is called the standard, by which, as a measuring square, to regulate one’s conduct. — Confucius.

Wary Lawyers

Diversity and inclusion has become a popular topic in management theory. Lawyers are often sceptical of buzz words and trends emerging from the corporate world, suspecting they are fleeting fads or do not apply to the rigorous, traditional practice of law.

Diversity and inclusion could easily be held suspect in the same way. Its double-barrelled name has the ring of a liberal feel-good phenomenon that will fade into obscurity in a few years to be replaced by the next enthusiasm. A concern is always that the research is not solid or proven and that corporate management types are too quick to jump on the next band wagon.

I venture to think, however, that diversity and inclusion will be a more permanent concept for at least two reasons. First, it is good for business and second, it is the right human thing to do. Bar associations, law societies and corporate counsel associations are developing pledges for firms and clients to take, committing to practising diversity and inclusion in requesting and providing services. Before turning to the perceived benefits of diversity and inclusion, we need to take a quick look at what those terms mean.

What is Diversity and Inclusion?

Diversity

Diversity involves having people with individual differences and acknowledging the unique blend of knowledge, skills and perspectives people bring to the workplace.

Academic research focuses on three distinct clusters of diversity categories:

  1. those based on social demography, such as gender, ethnicity/race, disability, and so on;
  2. those based on job-related characteristics, including education and tenure, and job function and expertise; and
  3. idiosyncratic diversity categories, which originate from local settings, such as accent, appearance, political ideology, nationality1 Ozbilgin, Tatli, Ipek and Sameer, The Business Case for Diversity Management, Association of Chartered Certified Accountants and the Economic and Social Research Council, September 2015. http://www.busman.qmul.ac.uk/media/sbm/research/researchcentres/cred/impact-reports/Tatli-ACCA-diversity-management.pdf.

Inclusion

Inclusion means valuing and respecting those differences and creating a culture where everyone feels welcome to contribute fully. Inclusion requires removing barriers to make sure everyone can fully participate in the workplace and have equal access to opportunities. It is about empowering people to contribute their skills and perspectives for the benefit of organisational performance and the business.2 Australian Government, Department of Human Services Workplace Diversity and Inclusion Strategy 2016-19 https://www.humanservices.gov.au/sites/default/files/8378-1609en.pdf.

Inclusion is both an active process and an outcome – the feeling of belonging, which in turn is comprised of perceptions of fairness, respect and value. These are separate concepts and build upon each other sequentially, so that to feel highly included a person would not only say that they are treated fairly and respectfully, but that their unique value is known and appreciated and they belong to the group3 Deloitte, Waiter, is that inclusion in my soup?, May 2013. at p 21. https://www2.deloitte.com/content/dam/Deloitte/au/Documents/human-capital/deloitte-au-hc-diversity-inclusion-soup-0513.pdf.

Deloitte said in their report Waiter, is that inclusion in my soup?4 Deloitte, Waiter, is that Inclusion in my Soup?, May 2013 at p 9. https://www2.deloitte.com/content/dam/Deloitte/au/Documents/human-capital/deloitte-au-hc-diversity-inclusion-soup-0513.pdf “the key elements of inclusion are (i) fairness and respect; and (ii) value and belonging; which, when combined with diversity lead to ‘inspiration and confidence’”.

Challenges for Law Firms

Those definitions make it immediately apparent that practising diversity and inclusion presents challenges for law firms in Singapore. Diversity is difficult because of the limited pool of graduates available for employment, coming mainly from the National University of Singapore (NUS), Singapore Management University, the Singapore University of Social Sciences and English Universities5 Prof Simon Chesterman, The fall and rise of legal education in Singapore, Straits Times, 12 December 2017.. The graduates from those universities available to work in Singapore would usually be Singaporeans. They can therefore be no more diverse than Singaporeans entering university to study law. Law firms do not have control over the graduates from whom they choose their employees. That control lies with the universities. Diversity can be found within that pool of graduates.

Traditional Hierarchy

Inclusion can be a challenge for any law firm with the traditional hierarchy of trainee leading to partner. Everyone in the hierarchy is aware of their position and is conscious of what is considered the appropriate amount of individuality and contribution in that firm. Senior members, often unconsciously, can radiate the message that junior members should be seen and not heard. Junior employees can be overawed by more senior colleagues and feel they have nothing to contribute. There is also the feeling of those of us who have endured the traditional rigorous training that that type of training is necessary to create careful, thorough, professional lawyers. It is not that we feel everyone should endure because we did, but that it is the unavoidable process of creating a proper lawyer.

The Merit Myth

Concentrating on merit alone can also be problematic. Dr Louise Ashley6 Louise Ashley PhD (Oxon) is a lecturer in Human Resource Management and Organizational Behaviour at Royal Holloway, University of London and a Visiting Fellow at the Centre for Professional Service Firms at Cass Business School. wrote in Making a difference? The use (and abuse) of diversity management at the UK’s elite law firms7 Ashley, Making a difference? The use (and abuse) of diversity management at the UK’s elite law firms, Work, Employment and Society, Vol 24, No 4, December 2010, 711 at p 714.:

Focusing on merit is said to have the dubious effect of forcing an individual competing on these terms to hide or suppress his or her differences arising from social group membership in order to get on. In turn, this process of assimilation allows a situation to perpetuate in which difference becomes a problem for the individual, not the organisation, and the ability to ‘fit in’ continues to be judged against the norm of the ‘ideal’ worker8 Liff, S. (1999) ‘Diversity and Equal Opportunities: Room for a Constructive Compromise?’, Human Resources Management Journal 9(1): 65–75; Young, I.M. (1990) Justice and the Politics of Difference. Princeton, NJ: Princeton University Press..

While it might be a challenge within the stressful environment of a law firm, it should be possible to develop a relatively diverse create a culture or respect where everyone feels the liberty to express themselves appropriately. Having said that, it is proving difficult for law firms in the UK and the US to increase diversity.

UK

In the UK, the profile of leading lawyers became less rather than more diverse in education terms from 1988 to 2014 with studies showing cultural practices within that legal sector maintaining exclusionary mechanisms based on social class9 Ashley, op cit, p 712..

Five elite law firms in London surveyed in 2010 all agreed that diversity was the right thing to do, but all made deliberate decisions not to do it. All five firms continued to assess new candidates on the basis of whether they would “fit in” with the firm’s culture10 Ashley, Making a difference? The use (and abuse) of diversity management at the UK’s elite law firms, Work, Employment and Society, Vol 24, No 4, December 2010, 711 at p 720..

The Law Society of England and Wales (LSEW) and the American Bar Association (ABA) are assisting the profession in the quest for greater diversity and inclusion. The LSEW has published Diversity and inclusion in law firms – The business cas­e11http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-and-inclusion-in-law-firms-the-business-case/, Diversity and inclusion in small law firms – The business cas­e12http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-and-inclusion-in-law-firms-the-business-case/, a Diversity and Inclusion Charter13http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-inclusion-charter/, a Diversity and Inclusion Procurement Protocol14http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/procurement-protocol/ and various case studies, reports and other related protocols15http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/. It reported in 201516http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-inclusion-charter/diversity-charter-annual-report/ at p 6. that there were 439 signatories to the Diversity and Inclusion Charter ranging from small family firms through to the largest global legal practices and including 70 of the top 100 firms.

Those firms reported in 201517http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-inclusion-charter/diversity-charter-annual-report/ that they were measuring progress through self-assessment under the charter; that leadership and vision, and employment and staff development play a critical role in retaining a healthy diverse talent pipeline and the capacity to translate this into a diverse partnership and inclusive leadership; that employment and staff development, provision of legal services, engagement increased; diversity and inclusion was becoming an established part of the procurement process; that flexible working is important to retain and support a diverse workforce; that they could demonstrate that all new policies and practices underwent equality impact assessments; and that the gender pay gap in law firms is still well above the average for England and Wales.

USA

In the US, the legal profession remains the least diverse white-collar profession in the country18 Hull, Diversity in the Legal Profession: Moving from Rhetoric to Reality (2013) Columbia Journal of Race and Law 1 at p 3.. Professor Hull says19 Ibid.:

While the root cause of this lack of diversity may be found in inadequacies within the educational system, the impact is compounded by the legal community’s unwillingness to take the effective steps necessary to promote diversity within the profession.

She recommended the creation of a national database of the level of diversity in firms20 Ibid at p 19., requiring additional training in bias and discrimination21 Ibid at pp20-21., and mandatory mentoring22 Ibid at pp21-22..

The ABA23 Incidentally, the largest voluntary organization in the world: Hull, Diversity in the Legal Profession: Moving from Rhetoric to Reality (2013) Columbia Journal of Race and Law 1 at p 5. has created an Office of Diversity and Inclusion24https://www.americanbar.org/groups/diversity.html, the Diversity & Inclusion 360 Commission and the Model Diversity Survey25https://americanbar.qualtrics.com/jfe/form/SV_7UHQ9ARbS2vj51b, and published The Diversity and Inclusion Showcase26https://www.americanbar.org/content/dam/aba/administrative/diversity/2015Showcase.authcheckdam.pdfand the books Moving Diversity Forward: How to Go From Well-Meaning to Well-Doing27 Myers, Moving Diversity Forward: How to Go from Well-Meaning to Well-Doing, (2011), ABA Book Publishing.and Diversity in Action: A Manual for Diversity Professionals in Law28 Brown and Cropper, Diversity in Action: A Manual for Diversity Professionals in Law (2015) Google Books.. In 2016, the ABA adopted Resolution 11329https://www.americanbar.org/news/reporter_resources/annual-meeting-2016/house-of-delegates-resolutions/113.html following a report by its Diversity & Inclusion 360 Commission, with the resolution stating:

RESOLVED, That the American Bar Association urges all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys; and

FURTHER RESOLVED, That the American Bar Association urges clients to assist in the facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys; and FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys” means attorneys who are included within the ambit of Goal III of the American Bar Association.

Goal III is:

Eliminate Bias and Enhance Diversity. Objectives:

  1. Promote full and equal participation in the association, our profession, and the justice system by all persons.
  2. Eliminate bias in the legal profession and the justice system.

The ABA Model Diversity Survey is to “assist law firms and clients in analyzing the role of minorities … in law firms and on client matters. As firms and clients track information over time, the Model Diversity Survey can become a vehicle for benchmarking the diversity of lawyers providing legal services as well as regular discussions between clients and their outside counsel on the topic of diversity.”

The ABA has actively endeavoured to develop a cohesive plan that fully integrates members of diverse groups. It has adopted the position that the legal community benefits from diversification, including that a diverse bar and bench creates greater trust in the mechanisms of government and the rule of law30 American Bar Association, Diversity in the Legal Profession: The Next Steps (2010) at p 5. http://www.americanbar.org/content/dam/aba/DiversityPort/ToolkitsProjects/nextstepsreport.pdf.

Australia

Law societies and bar associations in Australia are promoting diversity and inclusion in these ways:

  • The Law Council of Australia, publishing its Diversity Policy, Diversity and Equality Charter31 https://www.lawcouncil.asn.au/files/web-pdf/1508-Charter-Diversity-and-Equality-Charter.pdf,National Report on Attrition and Re-engagement and Model Equitable Briefing Policy32 https://www.lawcouncil.asn.au/files/pdf/policy-guideline/National_Model_Gender_Equitable_Briefing_Policy_updatedversion.pdf?b653ef90-91be-e711-93fb-005056be13b5;
  • The Law Society of New South Wales, publishing Diversity and Inclusion in the Legal Profession: The Business Case33https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/1404321.pdf;
  • The Queensland Law Society and its Dignity at Work Charter34 http://www.qls.com.au/For_the_profession/Practice_support/Resources/Equality_diversity_flexibility/Dignity_at_Work_Charter. and QLS Final Report on Work-Life Balance35 http://www.qls.com.au/For_the_profession/Practice_support/Resources/Equity_diversity_flexibility/Work-life_balance;
  • The Law Society of Western Australia Diversity and Equality Briefing Paper36 https://www.lawsocietywa.asn.au/wp-content/uploads/2015/10/Law-Society-Briefing-Papers-Diversity-and-Equality.pdf;

None of this is to suggest that Singapore should slavishly follow another country where demographics, social issues and customs are different. It is instead to show that diversity and inclusion initiatives are possible in the legal profession, that they can be measured effectively and can be successful against those measures.

Diversity and Inclusion is Good for Business

If we do not embrace diversity and inclusion for any other reason, we could welcome it for the improvement to business it brings. As succinctly put by the Queensland Law Society37http://www.qls.com.au/For_the_profession/Practice_support/Resources/Equity_diversity_flexibility, it is posited that genuine diversity and inclusion helps business:

  • attract and retain the best talent;
  • reduce absenteeism rates;
  • reduce stress or burnout;
  • improve staff satisfaction and wellbeing;
  • assist innovation and productivity;
  • attract and retain more diverse clients;
  • enhance management style;
  • enhance practice reputation;
  • reduce internal tensions.

Employees’ Well-being

All of these could be summarised broadly as contributing to the health and wellbeing of your employees with tangible, measurable improvements in productivity. Employee morale and health are directly related to business performance38 Willis Towers Watson research has found strong links among employee health improvement, reductions in absenteeism, drops in benefit costs, and improvement in employee engagement and workforce effectiveness. See “Health and Well-Being in the Workplace: The Engagement Challenge,” Jonathan Gardner and Steve Nyce, Willis Towers Watson, December 2015, with evidence that growth in engagement relates to growth in business outcomes39 Harter, Schmidt and Keyes, Well-being in the Workplace and its Relationship to Business Outcomes: A Review of the Gallup Studies (2002), in Keyes and Haidt, Flourishing The Positive Person and the Good Life, American Psychological Association. http://media.gallup.com/documents/whitePaper–Well-BeingInTheWorkplace.pdf. Unsurprisingly, the data indicate that workplaces with engaged employees, on average, do a better job of keeping employees, satisfying customers, and being financially productive and profitable40 Ibid at p 16..

Safety and Business Performance

There is recognition in the corporate world of a direct connection between safety and business performance. When Paul O’Neill became CEO of Alcoa in 1987, he spoke at his first investors’ meeting only about safety, and when he was asked the usual questions about inventories and capital ratios, he replied “I’m not certain you heard me. If you want to understand how Alcoa is doing, you need to look at our workplace safety figures.” one of the investors told his clients “The board put a crazy hippie in charge and he’s going to kill the company” and instructed them to sell their stock immediately41 Charles Duhigg, The Power of Habit, Random House (2012)..

O’Neill made safety Alcoa’s first priority in word and deed, and within one year profits had hit a record high. By the time O’Neill retired in 2000 to become US Treasury Secretary, the company’s annual net income was five times larger than before he arrived, and its market capitalization had risen by $27 billion42 Ibid.. Over his tenure, Alcoa dropped from 1.86 lost workdays to injury per 100 workers to 0.2. By 2012, the rate had fallen to 0.125.

The financial gains at Alcoa were not just the result of fewer lost work days. They were the result of a number of factors, one of which was workers responding to the “compassion, courage and values of Paul O’Neill”, being engaged and contributing more because they felt their well-being was more important to the company than its profits43 Wojick, ROI: A Hazard to Employee Safety? EHS Today, New York 9 February 2015. https://search-proquest-com.ezproxy.lib.monash.edu.au/docview/1653066049?accountid=12528.

Included Workers

Workers at Alcoa felt it was worthwhile to suggest innovations generally because their views on safety were actively sought and acted upon. Intermediate management gave more credence to workers’ suggestions because they learned the value of their safety contributions and felt empowered – mandated, even – by higher management to pay attention44 Simon, S., and Frazee, P. (2005). Building a better safety vehicle: Leadership-driven culture at General Motors. Professional Safety, 50(2), p 36.. In other words, staff were given a voice and included. On one level, the Alcoa safety-business transformation was a story of inclusion at work.

A 2013 study by the Center for Talent Innovation45 Hewlett, Marshall et al, Innovation, Diversity and Market Growth (2013) http://www.talentinnovation.org/assets/IDMG-ExecSummFINAL-CTI.pdf found that the engine of serial innovation is a diverse workforce managed by leaders who cherish difference, embrace disruption, and foster a speak-up culture, unlocking the innovate potential of an inherently diverse workforce. By encouraging a proliferation of perspectives, leaders who foster a speak-up culture also enable companies to realize greater efficiencies and trim costs. It is this speak-up culture – “an organizational environment where everyone feels free to volunteer opinions, suggest unorthodox approaches, or propose solutions that fly in the face of established practice”46 Ibid. – O’Neill created at Alcoa, beginning with safety then spreading to other aspects of the business.

Diversity and Inclusion and Business Performance

Many respectable organisations have concluded that diversity and inclusion improve business and decision making such as the consultancy firm McKinsey & Company, PricewaterhouseCoopers, Deloitte, Center for Talent Innovation, American Sociological Association, Tufts University, Scientific American, MSCI Inc, Gallup, Credit Suisse, Stanford Graduate School of Education, University of Illinois, Columbia Business School, Harvard University, Oklahoma State University, Ohio State University, University of California, Los Angeles.

The research proves a strong correlation between business performance and diversity and inclusion. The correlation is so strong that it is highly suggestive of causation. Researchers are presently delving deeper into the relationship to explore causation and to determine which aspects of diversity and inclusion affect which aspects of business performance. For example, in 2007 Horwitz and Horwitz47 Horwitz and Horwitz, The Effects of Team Diversity on Team Outcomes: A Meta-Analytic Review of Team Demography, Journal of Management, Vol. 33 No. 6, December 2007 987-1015. reviewed 20 years of research and identified a correlation between task-related diversity (but not bio-demographic diversity48 “Bio-demographic diversity represents innate member characteristics that are immediately observable and categorized (e.g., age, gender, and race/ethnicity) whereas task-related diversity is acquired individual) and team performance49 “Team performance is a multidimensional construct that encompasses several outcome measures such as quantitative production, qualitative team outcomes, and team cohesion”: ibid, p 990..

A 2012 research report from Deloitte, Waiter, is that inclusion in my soup?50 https://www2.deloitte.com/content/dam/Deloitte/au/Documents/human-capital/deloitte-au-hc-diversity-inclusion-soup-0513.pdf. based on the experiences of 1,550 employees in three large Australian businesses identified an 80 per cent improvement in business performance, innovation, customer service, collaboration and engagement when levels of diversity and inclusion were high. In the words of one commentator, this report edges closer to proving causation rather than mere correlation51 Smedley, The evidence is growing – there really is a business case for diversityhttps://www.ft.com/content/4f4b3c8e-d521-11e3-9187-00144feabdc0..

An American Sociological Association study Does Diversity Pay?: Race, Gender and the Business Case for Diversity 52 Herring, Does Diversity Pay?: Race, Gender and the Business Case for Diversity American Sociological Review Vol 74 No 2 April 2009, p 208 at p 217-219. http://www.asanet.org/sites/default/files/savvy/images/journals/docs/pdf/asr/Apr09ASRFeature.pdf by Cedric Herring supports this, finding that for every 1 per cent rise in the rate of gender diversity and ethnic diversity in a workforce there is a 3 and 9 per cent rise in sales revenue, respectively.

McKinsey & Company have been conducting research on diversity in the workplace for over a decade, publishing their first report Women Matter in 200753https://www.mckinsey.com/business-functions/organization/our-insights/gender-diversity-a-corporate-performance-driver. That report identified a positive relationship between corporate performance and elevated presence of women in the workplace in several Western European countries, including the UK, France, and Germany. They published another report in 2015, Diversity Matters54 https://www.mckinsey.com/business-functions/organization/our-insights/why-diversity-matters, of which they said:

Our latest research finds that companies in the top quartile for gender or racial and ethnic diversity are more likely to have financial returns above their national industry medians. Companies in the bottom quartile in these dimensions are statistically less likely to achieve above-average returns. And diversity is probably a competitive differentiator that shifts market share toward more diverse companies over time.

The Diversity Matters report found that:

  • Companies in the top quartile for racial and ethnic diversity are 35 percent more likely to have financial returns above their respective national industry medians.
  • Companies in the top quartile for gender diversity are 15 percent more likely to have financial returns above their respective national industry medians.
  • Companies in the bottom quartile both for gender and for ethnicity and race are statistically less likely to achieve above-average financial returns than the average companies in the data set (that is, bottom-quartile companies are lagging rather than merely not leading).
  • In the United States, there is a linear relationship between racial and ethnic diversity and better financial performance: for every 10 percent increase in racial and ethnic diversity on the senior-executive team, earnings before interest and taxes (EBIT) rise 0.8 percent.
  • Racial and ethnic diversity has a stronger impact on financial performance in the United States than gender diversity, perhaps because earlier efforts to increase women’s representation in the top levels of business have already yielded positive results.
  • In the United Kingdom, greater gender diversity on the senior-executive team corresponded to the highest performance uplift in our data set: for every 10 percent increase in gender diversity, EBIT rose by 3.5 percent.
  • While certain industries perform better on gender diversity and other industries on ethnic and racial diversity, no industry or company is in the top quartile on both dimensions.
  • The unequal performance of companies in the same industry and the same country implies that diversity is a competitive differentiator shifting market share toward more diverse companies.

Staff Satisfaction and Retention

Of particular interest to Singapore law firms would be the promise of greater staff satisfaction and retention through diversity and inclusion. In his Mass Call address of 201655https://www.supremecourt.gov.sg/Data/Editor/Documents/CJ%20Mass%20Call%20Speech%202016%20on%2026%20August%202016%20(Final).pdf at [15]., Chief Justice Menon referred to the statistics that “three out of four lawyers would have left the profession within the first decade of practice”56 Opening of Legal Year 2014, Address by the President of the Law Society, Mr Lok Vi Ming SC at [11]. and said:

And on a cross-sectional view of the profession, statistics published this year reveal that the number of mid-tier lawyers with seven to 12 years’ experience consistently made up about 10% or less of the entire profession over the last five years. To translate that into real numbers, there were only 423 mid-tier lawyers last year

His Honour went on to say:

In every decision to leave the legal profession, a balance of factors will no doubt be at play. There will be certain “pull” factors, such as the lure of a better job or quality of life elsewhere, but often there will be a wide range of “push” factors – long work hours made longer by technology that has made us accessible around the clock; a lack of real ownership over one’s work; and a sense that the opportunities for professional growth are shrinking. As these frustrations are compounded day after day in the grind of practice, they begin to take their toll on the young lawyer until, finally, the fire fizzles out. In short, he burns out.

In his 2017 Mass Call address57https://www.supremecourt.gov.sg/Data/Editor/Documents/Mass%20Call%202017%20Speech%20(Final)290817.pdf at [8]., his Honour noted again that “lawyers, especially young lawyers, are under increasing strain” and said58 Ibid at [10].:

But we can do more as a profession. I urge our law firms to make it a priority to examine the kinds of safeguards they have in place for lawyers who might be struggling to cope with the volume and pace of work.

Deloitte estimates the cost of turnover for knowledge workers (including lawyers) ranges from 200 to 500 percent of salary59 Deloitte, The gender dividend: Making the business case for investing in women, (2011) at p 25. https://www2.deloitte.com/content/dam/Deloitte/ru/Documents/public-sector/gender-dividend-en.pdf. The LSEW says60Diversity and inclusion in law firms – The business cas­e at p 12. http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-and-inclusion-in-law-firms-the-business-case/:

The indirect or ‘soft’ costs of replacing a member of staff are harder to quantify, but add to the overall cost. These include:

  • Lower levels of productivity – both of new staff who may have less knowledge and experience and require training to achieve desired levels of productivity, and existing staff affected by staff turnover, e.g. lower morale.
  • There is also the cost involved in possible poorer client service by a new member of staff

Embracing diversity and inclusion is one way to improve workplace health and help employees cope with the stress and the amount of work. Professor Katherine W Phillips, Paul Calello Professor of Leadership and Ethics and senior vice dean at Columbia Business School, in her article How Diversity Makes Us Smarter61 Philips, How Diversity Makes Us Smarter, Scientific American Vol 311 Issue 4, October 2014. says it works this way. People are more fulfilled and feel more involved and integral to the team when their individual, diverse, contribution is both welcome and valued. People who are different from one another in race, gender and other dimensions bring unique information and experiences to bear. That helps perform the task at hand better, more innovatively, creatively. It also means those who are permitted to participate from diverse perspectives feel included and real contributors to the solution.

Gallup’s Q12 Meta-Analysis Report62 http://news.gallup.com/reports/191489/q12-meta-analysis-report-2016.aspx?utm_source=employee-engagement-drives-growthandutm_medium=copyandutm_campaign=GBJoptimize. in 2012, its ninth employee engagement meta- analysis, combined decades of employee engagement data and illustrated the connections between highly engaged teams and increases in business outcomes. Researchers found that those scoring in the top half on employee engagement nearly doubled their odds of success compared with those in the bottom half. Those at the 99th percentile had four times the success rate of those at the first percentile.

Deloitte said in Waiter, is that inclusion in my soup63 Deloitte, Waiter, is that inclusion in my soup?, May 2013 at p 9. https://www2.deloitte.com/content/dam/Deloitte/au/Documents/human-capital/deloitte-au-hc-diversity-inclusion-soup-0513.pdf:

… the more included an employee feels, the more likely they are to be at work (i.e. reducing the cost of absenteeism) and to receive a higher performance rating. Making this a little more specific, the data from one organisation demonstrated that if just 10% more employees feel included, the company will increase work attendance by almost one day per year (6.5 hours) per employee

Singapore is not alone in dealing with attrition in the legal profession. Australia has the same concern and in 2014, the Law Council of Australia (the umbrella body for all law societies and bar associations) published the National Report on Attrition and Re-engagement64https://www.lawcouncil.asn.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/national-report-on-attrition-and-re-engagement and a Model Equitable Briefing Policy65https://www.lawcouncil.asn.au/files/pdf/policy-guideline/National_Model_Gender_Equitable_Briefing_Policy_updatedversion.pdf?b653ef90-91be-e711-93fb-005056be13b5. The report made the following findings:

  • Practitioners enjoy the interesting and diverse nature of legal work. For women, strong relationships with colleagues are a particular driver of satisfaction;
  • Long working hours and poor work-life balance impact both male and female practitioners;
  • Women experience career development and career progression opportunities differently from their male counterparts;
  • There is a perception of conscious or unconscious bias against women who adopt flexible working arrangements to balance family responsibilities;
  • The relative lack of women in senior leadership positions is seen to contribute to a male-dominated culture in which it is difficult for women to progress;
  • A very high level of discrimination and harassment at work was reported by both female and male practitioners. One in two women, and more than one in three men, reported having been bullied or intimidated in their current workplace;
  • Half of all women report experiencing discrimination due to their gender, whilst one in four has experienced sexual harassment in their workplace;
  • Experiences of gender discrimination range from blatantly different treatment to subtler forms of prejudice that are harder to articulate;
  • Discriminatory behaviour was more commonly identified in large and medium size law firms;
  • Private practitioners choosing to downsize from a large firm were commonly motivated by their unhappiness with the culture and leadership at their firm;
  • The influence of culture, leadership and work-life balance was also evident for those leaving private practice for in-house roles;
  • Over one in three women were considering moving to a new job within the next five years. Females in private practice were most likely to be considering taking up an in-house role;
  • Flexible working conditions and barriers to promotion were more important factors for women considering leaving their current role than for men;
  • Opportunities for better work-life balance, more flexibility and reduced stress motivated those who had left the legal profession entirely;
  • The key drivers of attrition from private practice, including culture and working conditions, correspond closely to the barriers to re-engagement.

Many, if not all, of those complaints would be at least partially addressed by genuine diversity and inclusion.

Innovation

We may not immediately think of innovation in the legal profession as a high priority in the same way it might be in an industrial process. With competition and commercial pressures, however, innovation in the practice of law generally, in discrete processes or in individual transactions or disputes is valued. Clients appreciate – expect, perhaps – results delivered quickly, cheaply and accurately, and a firm which is able to produce results quicker, cheaper or more accurately will have a competitive edge. As the Center for Talent Innovation (CTI)66 Hewlett, Marshall et al, Innovation, Diversity and Market Growth (2013) http://www.talentinnovation.org/assets/IDMG-ExecSummFINAL-CTI.pdf said:

Greater productivity may boost earnings, but in today’s fiercely competitive global economy, it is serial innovation that drives and sustains growth.

Testifying to this is the proliferation of innovation awards for lawyers such as the Financial Times Asia-Pacific Innovative Lawyers Awards67https://live.ft.com/Events/2017/FT-Innovative-Lawyers-Awards-Asia., the Asia Legal Awards68http://www.asialegalawards.com/ehome/index.php?eventid=297821&., and the Asian Legal Business SE Asia Law Awards69http://www.legalbusinessonline.com/awards/seasia-law-awards-2017. One would imagine Chambers and Partners’ Awards must necessarily consider innovation in determining “a law firm’s pre-eminence … [and] notable achievements over the past twelve months, impressive strategic growth and excellence in client services”70https://www.chambersandpartners.com/Chambers-Awards.. The Legal Week Innovation Awards71http://www.thelegalinnovationawards.com/ehome/index.php?eventid=188946& said they were “bringing together the most transformative and disruptive leaders in law”. Janders Dean and Lexis Nexis created the Legal Innovation Index in 2013 which seeks to provide national recognition to the most innovative firms and legal teams in Australia and New Zealand, through I,nitiatives that deliver uniqueness and value to their clients and differentiate their organisation”72http://legalinnovation.com.au/..

The CTI study that the data strongly suggest that homogeneity stifles innovation, with 56% of leaders not valuing ideas for which they did not personally see a need. It said:

But what drives serial innovation? CTI’s ground-breaking research reveals the engine to be a diverse workforce that’s managed by leaders who cherish difference, embrace disruption, and foster a speak-up culture. Inclusive leader behaviors effectively “unlock” the innovative potential of an inherently diverse workforce, enabling companies to increase their share of existing markets and lever open brand new ones. By encouraging a proliferation of perspectives, leaders who foster a speak-up culture also enable companies to realize greater efficiencies and trim costs—another way that innovation drives bottom-line value.

Six behaviours were found by CTI to unlock innovation across the board: ensuring that everyone is heard; making it safe to propose novel ideas; giving team members decision-making authority; sharing credit for success; giving actionable feedback; and implementing feedback from the team. Leaders who give diverse voices equal airtime are nearly twice as likely as others to unleash value-driving insights, and employees in a speak-up culture are 3.5 times as likely to contribute their full innovative potential73 Hewlett, Marshall and Sherbin, How Diversity Can Drive Innovation, Harvard Business Review, December 2013 Vol. 91 Issue 12, p 30. https://hbr.org/2013/12/how-diversity-can-drive-innovation.

Deloitte’s research74 https://www2.deloitte.com/content/dam/Deloitte/au/Documents/human-capital/deloitte-au-hc-diversity-inclusion-soup-0513.pdf. “found a strong relationship between feeling confident and safe to speak up (particularly if the view differs from the majority) and feeling inspired to do ‘my best work’”. It found that “confidence and inspiration drives innovation, customer service, collaboration and engagement”.

Catalyst75 Founded in 1962, Catalyst is a leading nonprofit organization expanding opportunities for women and business. surveyed a total of 1,512 employees, approximately 250 from each of six different countries—Australia, China (Shanghai), Germany, India, Mexico, and the United States. In all six countries, the more included employees felt, the more innovative they reported being in their jobs76 Prime and Salib, Inclusive Leadership: The View from Six Countries, (2014), p 2. http://www.catalyst.org/system/files/inclusive_leadership_the_view_from_six_countries_0.pdf