Posted by Neil Rose, Editor, Legal Futures
Equality: regulatory action appears to be more about experience than race
The strained relationship that black and minority ethnic (BME) solicitors have with their regulator came back sharply into focus this week with publication of a report into BME solicitors’ disproportionately high representation in the activities of the Solicitors Regulation Authority (SRA) (see story here).
It is patently worrying that some of the SRA’s internal processes compound this disproportionality (although equally other processes reduce it) and there are problems that, in some cases, are having an adverse impact on BME solicitors. The SRA obviously has to address them.
It has been clear from the start of this investigation that other factors may well be at play, and the report, prepared by business psychologists Pearn Kandola, identifies them. For example, BME solicitors feature disproportionately in the complaints and intelligence the SRA receives – not much the regulator can do about that.
Then there is the finding, the importance of which is rather hidden away in the report, that the number of years a solicitor has been practising is “more likely to predict” whether they will face regulatory proceedings than their ethnicity – those at the beginning of their careers and those with many years of experience under their belt are most likely to be under scrutiny. The former is not a huge surprise, but the latter is and Pearn Kandola have some stabs at explaining why this could be, but essentially don’t really know.
Working in a small firm is also a predictor. And because BME solicitors tend to have qualified more recently and generally work in smaller firms, these factors impact on them more. This all seems to say as much, if not more, about the SRA’s possible failings in ensuring young lawyers have adequate training and supervision, and in monitoring small law firms.
So there are parts of the SRA which (one has to assume unconsciously) operate in one way or another to disadvantage BME solicitors. It may be cold comfort to those who have been on the receiving end that the issue is now being addressed, but Pearn Kandola make the point that not many regulators are doing so. The BME lobby should take some of the credit for pushing the SRA on this.
But it is worth remembering that the SRA voluntarily raised this issue back in 2004 when it first discovered that disproportionality was occurring. An initial equality impact analysis was commissioned and published, with various action points highlighted. And the SRA’s failure then was not to do much about it all until a big political fuss about disproportionality blew up in 2007, by which point the SRA was exposed by its inaction.
The SRA then commissioned the Ouseley report, but it was on the back foot, a stance it has held ever since, despite engaging with BME groups and bringing in Pearn Kandola.
Perhaps most worrying of all is that this has contributed to a huge degree of antipathy towards the SRA among BME solicitors. This was compounded recently by the decision to push ahead with changes to the assigned risks pool despite the equality impact assessment indicating that BME solicitors would be adversely affected (see story here), and what is seen as too slow a response to concerns identified by Law Society research (see story here) that some professional indemnity insurers discriminate against BME firms (a charge the insurance industry vehemently denies – see my article in the Gazette’s supplement last week, downloadable here).
In a letter to the SRA board before making its decision on the assigned risks pool, the chairwoman of the Black Solicitors Network said the confidence many BME practitioners felt in their regulator “is possibly at its lowest ebb”. The SRA is trying hard to remedy this, but it has not helped itself in the past, and has a long way to go.
I’m still grappling with the detail of this report, but my initial reading of it was that BME sols overrepresentation in SRA processes was explained by factors other than their ethnicity such as the types of firm that they work in. What was most interesting to me was the U-effect: that ethical problems are most manifest with trainee/newlyqualified and long-time qualified solicitors. It’s been common to devote regulatory attention to the youngsters but there has, in the past, been less of an inclination to those who have been in practice a long time. It wil be interesting to see how the findings of this study play out in the outcomes- and risk-based approach that the SRA promises.