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 99^th 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. And in every country, the more included employees felt, the more they reported engaging in team citizenship behaviours—going above and beyond the “call of duty” to help other team members and meet workgroup objectives⁷⁷ Ibid, p 3..

Interestingly, in China and Mexico the links between inclusion and innovation and team citizenship was strongest. Chinese and Mexican employees’ perceptions of inclusion accounted for 78% and 51% of innovation respectively and 71% and 60% of citizenship⁷⁸ Ibid p 3..

Professor Phillips⁷⁹ Philips, How Diversity Makes Us Smarter, Scientific American Vol 311 Issue 4, October 2014. says diversity works by promoting hard work and creativity; by encouraging the consideration of alternatives even before any interpersonal interaction takes place. When disagreement comes from a socially different person, we are prompted to work harder. Diversity jolts us into cognitive action in ways that homogeneity simply does not. She says:

Diversity enhances creativity. It encourages the search for novel information and perspectives, leading to better decision making and problem solving. Diversity can improve the bottom line of companies and lead to unfettered discoveries and breakthrough innovations. Even simply being exposed to diversity can change the way you think. This is not just wishful thinking: it is the conclusion I draw from decades of research from organizational scientists, psychologists, sociologists, economists and demographers

The Right Thing

A potential problem of focussing on the business case for diversity and inclusion is that the social justice aspect could be lost. Managers could abandon diversity and inclusion efforts in particular cases where it was not perceived as profitable. This might occur often because managers might be forced to take a short term view and the efforts might have short term costs and benefits only in the long term⁸⁰ Noon, op cit at pp 776-8. http://journals.sagepub.com/doi/abs/10.1177/0950017007082886. It is helpful, then, to keep the rightness and fairness aspects in mind.

Although merely rhetorical, it seems to be a self-evident truth that practising diversity and inclusion is the right thing to do. This was acknowledged by the five elite London law firms surveyed by Dr Ashley⁸¹ 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.. Most right-thinking lawyers would accept that people in the workplace should not be bullied, belittled, marginalised, excluded, ridiculed, abused, straight-jacketed or depersonalised. It seems obvious that such treatment is not going to get the best from employees nor retain the best. It also seems obvious that it is wrong to treat people in this way, whatever ones moral, religious or irreligious persuasion.

Constraints to act in accordance with diversity and inclusion can be found, if needed, in the principles of our profession, in religion, universal morality and secular humanism.

Our Profession — A Conscientious Bar

In his 2017 Mass Call address⁸² Op cit at [1]., Chief Justice Menon referred to Mr Lee Kuan Yew’s speech at the inaugural dinner of the Singapore Advocates and Solicitors Society in March 1967 in which Mr Lee urged the nascent professions to “Be a conscientious Bar” and “a bar with a conscience, a social conscience towards your own society”⁸³ Lee Kuan Yew, Speech at the 1st Annual Dinner of the Singapore Advocates and Solicitors Society, 18 March 1967, The Adelphi Hotel (“Speech at Inaugural Dinner”), http://www.nas.gov.sg/archivesonline/data/pdfdoc/lky19 670318.pdf?.. The Chief Justice distilled the essence of the Prime Minister’s words in saying⁸⁴ Op cit at [2].:

But at the core of Mr Lee’s address that day was a message as simple as it was timeless, which is that as legal professionals, we have an obligation beyond ourselves; we have a duty to pursue justice beyond the letter of the law and, ultimately, to seek the welfare of the society of which we are part.

His Honour immediately went on to analyse Professor Roscoe Pound’s definition of “profession” as a group of people “pursuing a learned art as a common calling in the spirit of public service”.⁸⁵ Roscoe Pound, The Lawyer from Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States, (West Publishing Company, 1953) at pp 353–354. To “seek the welfare of society of which we are part”, we can start with those in our immediate sphere of influence, our colleagues and staff. It is hard to be seen to be seeking the welfare of society if we are unconcerned with the welfare of those closest to us. Charity begins at home.

The Golden, Silver and Platinum Rules

I do not want to sound preachy so will mention these rules for your acceptance or rejection.

The “Golden Rule” of treating others as one would wish to be treated is common to either the letter or the spirit of most faiths[86], to universal morality and to secular humanism with its ethic of reciprocity. In its fullness, it is the essence of diversity and inclusion. Jeffrey Wattles says in the conclusion to his book The Golden Rule[87]:

Confucius expressed the Golden Rule in the same way but also in the negative, known as the “Silver Rule”, saying[88]:

Do not do to others what you do not want them to do to you

Doctrine of the Mean

What I do not wish men to do to me, I also wish not to do to men

Analects 15:23;

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

The Great Learning;

Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence

Mencius VII.A.4;

Tse-kung asked, ‘Is there one word that can serve as a principle of conduct for life?’ Confucius replied, ‘It is the word ‘shu’ — reciprocity. Do not impose on others what you yourself do not desire.’

Doctrine of the Mean 13.3.

A new rule has been developed from the Golden Rule to foster diversity and inclusion, known as the “Platinum Rule” — treat others not just as you wish to be treated, but as they wish to be treated. This rule suggests we should “always be considerate and sensitive to the boundaries and expectations of others. A request or activity you may be comfortable with could be in conflict with the values of someone else in your company. Even commonplace interactions could have subtle cultural nuances to take into account. For instance, understanding how different cultures perceive a handshake, maintaining eye contact, or the boundaries of personal space can help to avert misunderstandings.”[89]

What Can We Do?

Lawyers at Mastercard⁸⁶Longoria and Watson, Driving Diversity and Inclusion from the Inside Out, ACC Docket, 17 March 2017 http://www.accdocket.com/articles/driving-diversity-and-inclusion-from-inside-out.cfm have suggested 10 things corporate law departments can do to promote diversity among their outside counsel. They are:

1. Include certified diverse law firms in any preferred law firm provider panel.
2. Make sure your in-house legal staff gets to know the diverse firms and their capabilities and areas of practice.
3. Pledge a significant percent (≥5 percent) of your outside legal spend with certified diverse suppliers.
4. Develop standards for those of your outside firms who are not certified diverse for recruiting and retaining diverse talent, and for staffing your matters with that talent.
5. Evaluate your outside firms on their commitment to recruit, retain, and staff your matters with diverse talent.
6. Put your money where your mouth is — make sure the firms that don’t demonstrate that commitment understand that there will be consequences.
7. Don’t make promises you don’t keep: if a firm doesn’t demonstrate the commitment, implement the consequences.
8. Hold your in-house staff to the same commitments relative to working with certified diverse firms and recruiting and retaining diverse talent.
9. Sign on to ABA Resolution 113.
10. Implement the ABA survey as a means of evaluating your outside firms along diversity lines.

What Else?

Creating a diverse and inclusive profession requires a determined and targeted approach which does not lend itself to the tempting list of 10 “Things To Do”. Such a list could only be very superficial and carries the risk of appearing to do something when in reality it achieves little or nothing. Authorities on the topic emphasise that creating truly diverse and inclusive workplaces needs a top-down, bottom up strategy and almost a bespoke approach, taking into account the local demographics, those in the workplace and other issues peculiar to the situation.

Kirton and Green in their book The Dynamics of Managing Diversity: A Critical Approach⁸⁷ Kirton and Green, The Dynamics of Managing Diversity: A Critical Approach, 4^th edition, Routledge (2015), p 209. note that “[m]uch research indicates there is a substantial mismatch between an organization’s possession of an equality and diversity policy and organizational action in translation the policy into practice”.

In their 2011 report Only skin deep⁸⁸ Deloitte, Only skin deep, https://www.ced.org/pdf/Deloitte_-_Only_Skin_Deep.pdf pp 7 and 14., Deloitte said:

… it is not enough to create a corporate version of Noah’s Ark bringing in ‘two of each kind.’ Unless the zebras, giraffes and lions on Noah’s Ark fully engage with each other to understand and benefit from these perspectives then the opportunity has been lost⁸⁹ Citing Liswood, The Loudest Duck, John Wiley & Sons Inc, New Jersey USA (2009).

There is a clear argument for actively managing diversity rather than assuming we will naturally derive the benefits of diversity, merely by placing ‘different’ people in a room together.

General Guidance

Having said that and bearing those limitations in mind, the LSEW makes the following general suggestions on your firm’s next steps⁹⁰Diversity and inclusion in law firms – The business cas­e at p 15. http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-and-inclusion-in-law-firms-the-business-case/ (bearing in mind also that these are directed to helping firms in the UK):

1. Make sure that, as a leadership team, you are clear how diversity and inclusion can help your business, and that you communicate its role and importance to everyone in your firm. Don’t make this a ‘nice to have’ issue but a ‘must have’ one, that underpins business success.
2. Be clear about the diversity and inclusion improvements you want to achieve as a firm, and create an action plan to achieve them and a set of performance indicators to help you track progress. Make this part of your core business planning and reviewing process.
3. Identify and develop the capabilities you need in your firm to create a diverse and inclusive work environment.
4. Make diversity and inclusion everyone’s responsibility, not just those who are involved with HR. Only recruit and promote people who demonstrate the values and behaviours you need to achieve the diversity and inclusion improvements you are seeking.
5. Have fair and transparent recruitment processes (both those used internally by the firm and those that are outsourced to recruitment agencies) which use inclusive language. Support these processes with a formal and transparent process on promotion and progression within the firm.

The Four Leadership Behaviours Linked to Inclusion

Catalyst identified four leadership behaviours predicted feelings of uniqueness and belongingness—the two key ingredients for inclusion⁹¹ Prime and Salib, Inclusive Leadership: The View from Six Countries, (2014), p 7. http://www.catalyst.org/system/files/inclusive_leadership_the_view_from_six_countries_0.pdf. These were:

• Empowerment—Enabling direct reports to develop and excel.
• Humility—Admitting mistakes. Learning from criticism and different points of view. Acknowledging and seeking contributions of others to overcome one’s limitations.
• Courage—Putting personal interests aside to achieve what needs to be done. Acting on convictions and principles even when it requires personal risk-taking.
• Accountability—Demonstrating confidence in direct reports by holding them responsible for performance they can control.

Personal Microcosms

As an employee, individually we can be a little microcosm of diversity and inclusion, in the knowledge that such organisms can be contagious:

1. Take the online Harvard Implicit Association tests at https://implicit.harvard.edu/implicit/australia/takeatest.html;
2. Treat people equally in public settings such as meetings, eg with the same level of greeting to all;
3. Leaders make space for everyone to have their say;
4. Leaders encourage a speak-up culture, perhaps by inviting comments on suggestions on one issue first (as in the Alcoa safety story);
5. Celebrate diversity;
6. Speak up, be heard, be yourself;
7. Participate in employee engagement surveys and respond as openly and honestly as possible⁹² Items 7-11 are from Pedrelli, 10 Ways Employees can Support Diversity and Inclusion, Profiles in Diversity Journal, 9 September 2014. http://www.diversityjournal.com/14154-10-ways-employees-can-support-diversity-inclusion/;
8. Become culturally competent. Take the time to learn about different cultures, races, religions and backgrounds represented by your colleagues;
9. Welcome ideas that are different from your own, and support fellow teammates;
10. Understand the diversity elements you personally bring to the organization, including socio-economic background, education level, geographic location, thought, experiences;
11. Drive positive change in the organization. Be a spokesperson for diversity issues that are not necessarily your own;
12. Be careful of creating an “in” and an “out” crowd, eg by inviting only certain people to lunch, sharing emails with certain people only⁹³ Items 12 and 13 are from Gaudiano and Hunt, Six Simple Things You Can Do To Support Workplace Diversity And Inclusion, https://www.forbes.com/sites/gaudianohunt/2016/08/15/six-simple-things-you-can-do-to-support-workplace-diversity-inclusion/#1d04a4b7372c;
13. Look for imbalances in your sources of information and make sure you are not reading information from people like you which merely confirms your views;
14. Treat others how they want to be treated, not how you want to be treated;
15. Consider the extent to which your team reflects diverse backgrounds and how you leverage this to avoid ‘group think⁹⁴ Items 15 to 17 are from the Law Society of England and Wales’ Diversity and inclusion in law firms – The business cas­e at p 15. http://www.lawsociety.org.uk/support-services/practice-management/diversity-inclusion/diversity-and-inclusion-in-law-firms-the-business-case/;
16. Consider the extent to which your team reflects diverse backgrounds and how you leverage this to avoid ‘group think;
17. Mentor or sponsor someone with high potential from a group under-represented in your firm’s leadership;
18. Ask to be mentored or sponsored by someone who will appreciate your unique contribution.

The resources mentioned in this article can also be helpful in developing and refining an approach to diversity and inclusion.

Conclusion

While the legal profession generally lags behind other industries in diversity and inclusion, there appear to be real rewards in making conscious efforts to create a work place that is more diverse in many aspects and where everyone feels welcome and is comfortable to express their views. These rewards are in keeping a happier staff longer, finding real fulfilment in our work, great client engagement, increased productivity – and in being “enlarged” within ourselves from doing the right thing.