Consider inclusion from both buy and sell sides of the legal profession
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Danielle Kelly
Danielle Kelly is head of diversity and inclusion at Herbert Smith Freehills

Diversity and inclusion has been a hot topic in the legal profession for more than a decade. During this time, many a statement has been released, roundtable convened, and article written, but translating discussion about diversity, inclusion, and belonging into progress via practical actions has been challenging.

To be clear, this is not a criticism. There are clear signs of the progress being made by those leading this important work.

Diversity and inclusion is in essence, the ongoing work of leadership – and our profession will not progress without leaders leading inclusively. Fundamentally, I believe this means leading with curiosity, acknowledging that we do not always have the answers, that we are cognisant of our biases, and that we take steps to counteract these.

Leadership in law – and other professions – is about developing an ability to view the world through different cultural lenses, openly championing diversity, and ensuring that psychological safety exists in your teams. The last point, about psychological safety, is key to inclusion: we cannot realise the power of diversity if the team culture does not support inter-personal risk-taking and divergent thinking.

That is why, more recently, the concept of “belonging” has become part of the discussion about diversity and inclusion. Where diversity is a fact (and in that sense objective), inclusion is a behaviour and belonging is the subjective or emotional feeling of being included within the team.

Like all truly transformational work, nudging the legal profession to become more diverse and inclusive is complex, messy, and hard. This should not mean that we shy away from this work, or, worse, characterise the skills required to lead inclusively as optional “soft skills”. If people do not feel that they truly belong within the profession, they will leave and the profession will suffer from this loss of talent.

Yet, as Vidal Sassoon once said, the only place where success comes before work is in the dictionary. So often our characterisation of people skills as “soft skills” is an attempt to divert attention from our ability to do them well and minimise the hard work others put into developing others.

It’s worth remembering that the core purpose of the legal profession is to serve the justice system and build trust in society. We cannot deliver on this purpose if those working within the profession do not reflect our broader communities. Hence, the stakes are high as we face this adaptive challenge of how we transform the profession to be one that is more reflective of our clients and society more broadly.

In doing so, we unleash the innovation and creativity which is an outcome of greater diversity and inclusion. Tapping into innovation and creativity will be crucial, particularly for private practice firms, in mature markets where future success may bear little correlation with those factors which were key for past success.

Embedding greater diversity and inclusion across the profession is, in a sense, infinite work – work where the parameters are constantly shifting and where there is no defined endpoint

Against this background, Herbert Smith Freehills has held a series of inclusion forums stretching across its Australian and UK bases. Initially driven by a panel of general counsel it boasts membership from some of the largest, most influential brands across the globe including major telecoms, energy, and consumer goods companies.

Their purpose is to engage both the “buy-side” (in-house counsel teams) and the “sell-side” (private practice) in addressing the adaptive challenge of diversity and inclusion within the profession.

While the initial forums focused broadly on diversity and inclusion, those held most recently, in the context of the pandemic, are paying particular attention to the issues of ethnic diversity and mental health and wellbeing in the profession.

My firm's own commitment, expressed through our “ten actions for change” recognised the need for growth. How can we lead on such an important issue without acknowledging that we are not where we want or need to be in relation to ethnic diversity. Our public announcement of these ten actions was a clear indication to the external market, as well as to existing employees and partners, that the firm is prepared to be held accountable for actions and initiatives to improve the representation and experience of ethnically diverse people.

This lesson, of holding a mirror to our own – and the legal profession's progress – must run in parallel to discussing the importance of data collection.

It was interesting to note the practical steps that some organisations have taken, either because of lessons learned during the past year, or as a result of the analysis of data they have collected. For example, one of the organisations attending our most recent forum outlined how they had implemented a policy to offer greater flexibility for all staff by allowing people to swap out public or bank holidays for another day of their choosing – something that was particularly well-received by those who wanted to swap a public/bank holiday for a day of religious or cultural significance to them.

Embedding greater diversity and inclusion across the profession is, in a sense, infinite work – work where the parameters are constantly shifting and where there is no defined endpoint. It is work that is inherently relational rather than transactional and where we all stand to lose if we don’t lean into what are often uncomfortable issues with courage and humility.

Herbert Smith Freehill's ten actions for change
1. Address barriers to the recruitment of Black, First Nations, Asian and minority ethnic people
2. Improve retention of Black, First Nations, Asian and minority ethnic colleagues and improve representation in more senior roles
3. Deliver anti-racism workshops in addition to global D&I programmes
4. Better inform and track our approach through robust data collection and analysis, and target-setting where appropriate
5. Invest in research and continue listening to our people (including leavers) and communities
6. Engage meaningfully with our clients on anti-racism
7. Increase mentoring and work experience opportunities for young people from Black, First Nations, Asian and minority ethnic backgrounds
8. Support diversity without our supply chain and support businesses and social enterprises owned by Black, First Nations, Asian and minority ethnic people
9. Increase pro bono support for organisations that address racial inequality
10. Hold regional executives accountable for progress on ethnic diversity