Representation: “Overlapping factors” in more BAME solicitors in reports to SRA
Groundbreaking research has contradicted the views of academics and solicitors that bias amongst clients in part explains why Black, Asian and minority ethnic (BAME) solicitors are overrepresented in reports to the Solicitors Regulation Authority (SRA).
Rather, there was a range of “overlapping factors that together generate patterns of overrepresentation”, it said.
“Ethnicity is a key factor in explanations, but most importantly it interacts with other factors including gender, age, organisational contexts, such as size of firms, and types of work that increase the likelihood of a report being made to the SRA.”
The independent research, prepared by a consortium of academics at the universities of York, Cardiff and Lancaster, also found that the SRA’s assessment procedures when deciding whether to investigate solicitors were not biased.
The research is the second and final part of a project commissioned by the SRA to try and understand why those from BAME backgrounds are overrepresented in reports to, and resulting investigations by, the regulator.
Its analysis of 10m SRA data points showed that, between 2018 and 2022, there were 22% more reports about BAME solicitors than would be expected based on their numbers in the profession, and 7% fewer about White solicitors.
“This is compounded at the [SRA’s] assessment stage, there were 23% more reports about BAME solicitors taken forward for investigation than one would expect and 12% fewer about White solicitors.”
Within the BAME group, there were 27% more reports received about Asian solicitors than would be expected and 32% more reports received about Black solicitors.
At the assessment stage, there were 25% more Asian solicitors named on reports which the SRA took forward for investigation than would be expected and 23% more about Black solicitors.
The issue was first identified in 2004 and has been the subject of previous research, but not on the scale of this project – it is also not unique to the SRA or to legal regulation.
The first part of the project was a literature review published in June 2023, which said there may be “socio-cognitive biases” in those making a complaint, and also pointed to BAME solicitors’ overrepresentation in firms or practice areas “that by their very nature are more likely to generate complaints”.
Solicitors interviewed by researchers for the second part “broadly supported what we found in the literature review”, tending to view overrepresentation “as the result of structural biases pervading the profession as well as society as a whole”.
However, a consumer survey that generated 4,200 responses “did not provide any corroborating evidence for client biases as a cause of overrepresentation”.
It tested views on scenarios involving solicitors of different ethnicities (as indicated by their names) and genders where something had gone wrong, and whether they would report them to the SRA.
“When presented with a hypothetical situation in which something had ‘gone wrong’, there was no apparent evidence of consumers making attributions about blame that differed depending on ethnicity.
“These findings echo the view from other regulators, who had not identified any biases or disproportionality in reports received from consumers (e.g. in the medical profession from patients).”
The research said working in a one-partner or small firm, and the overrepresentation of BAME solicitors in such firms, “is the key organisational factor relevant” to overrepresentation in reports to the SRA.
“Our interviews revealed a range of challenges and ‘strains’ that solicitors working in smaller firms might experience. Our findings suggests that BAME solicitors are disproportionately exposed to these challenges and strains.”
Solicitors working in legal aid firms were more likely to be the subject of a report to the SRA, and BAME solicitors disproportionately work in such firms.
Strikingly, what were called ‘non-regulated organisations’ – mostly other agencies, including the police, courts and reports from the within the SRA – made 9% fewer reports about White solicitors and 29% and 42% more reports respectively about Asian and Black solicitors.
Looking at complaints from the profession, mainly other solicitors, there were 8% fewer reports about White solicitors and 28% more about Asian solicitors (the findings for reports about Black solicitors were not statistically significant).
Reports about BAME solicitors were 52% more likely to progress to investigation than those about White solicitors, the research found.
But this was not due to bias among SRA staff: “The overrepresentation of BAME solicitors at the assessment stage is complex, but the SRA’s assessment processes and approach follow robust procedures designed to ensure fairness and consistency in decision making,” researchers said.
Whilst there was “some room” for personal judgement, the SRA recognised this and managed the risk by providing “a transparent set of criteria and clear guidance”.
The research went on: “Staff were well trained and supported in reaching the right decision with the opportunity to consult others and felt accountable for making these important and difficult decisions.”
Similar factors as those behind reports in the first place appeared to influence investigation decisions: reports about BAME solicitors in one-partner and small firms were 91% and 76% respectively more likely to be taken forward for investigation; the figure for White solicitors in one-partner firms was 71%.
Specialisation was also “an important factor” in reports – working in personal injury and immigration increased the likelihood of a report being taken forward for investigation by 54% and 64% respectively, but family and children work significantly decreased it.
Entry route to the profession was important too, with those using the old Qualified Lawyer Transfer Test increasing the likelihood of a report being investigated.
Who submitted the report also mattered: “Reports from regulated individuals and organisations are significantly more likely to be taken forward than reports from individual consumers.”
The researchers set out a range of actions that could now follow. The SRA said it would take forward recommendations to better tailor compliance and support materials for small firms, to develop guidance for staff on handling complex borderline cases, and to improve how it collects and uses data.
The report said law firms should look to develop “support mechanisms and networks to help BAME solicitors navigate challenges that increase the likelihood of being the subject of a report to the SRA”, while large law firms should consider what more could be done to tackle the underrepresentation of BAME solicitors among their staff.
The researchers concluded: “There are a number of potential actions such as refining data collection, further stakeholder engagement and pan-regulator dialogue about overrepresentation causes and responses which may help to address the systemic problem.
“However, none will be a quick fix, and many will require input and collaboration from a number of stakeholders.”
SRA chief executive Paul Philip said: “We are committed to taking meaningful action to address this issue and to work collaboratively with others, across the sector and beyond, to ensure fairness for all solicitors.
“We are reassured that the researchers did not find any evidence of direct bias within our processes, but recognise there are actions we can take to review our approach further.”
The researchers cautioned that “correlation does not definitively indicate causality”.
I’ve practiced in more than one jurisdiction and have been threatened with complaints several times, almost always by one ethnic group. That ethnic group has probably been less than 5% of my clients, 90% of threatened complaints and 100% of actual complaints to the ombudsman, of which I have had only one in 18 years of practice. I suspect that particular ethnic group instructs solicitors from its own community more than average, then complains more than average, to the detriment of solicitors from that ethnic background. I am tempted to refuse instructions from this group, but that would be unfair on those of them who are honest; as far as I can tell, about 20% of them. I attribute this to cultural differences, and have tried to allow for it, communicating extra clearly about fees, but it seems to be impossible and perhaps reflects the difficulty of business, if not survival, in their own country. I suspect it’s also due to the obligations owed to members of their own extended families, obligations that don’t extend to outsiders. I’d be particularly interested in hearing the experiences of others affected by this, and especially interested in hearing from solicitors from this cultural background.