The relationship between ethnic minority solicitors and their regulatory body forms the basis of a major report. Neil Rose examines its findings and the profession's reaction.


Ethnic minority solicitors are disproportionately represented in regulatory decisions made by the Law Society when compared to the make-up of the profession as a whole, recent research has shown – and it is a discovery that is bound to ring alarm bells.



It does not necessarily mean that discrimination is endemic to the Law Society’s regulatory activities, but it has provoked a more detailed investigation.



The process was triggered by a review of 2004 data from the Law Society’s investigation and enforcement (I&E) unit. For example, it found that while Asian solicitors made up 4.4% of the profession, they were the subject of nearly 9% of regulatory decisions. These included interventions, practising certificate conditions and referrals to the Solicitors Disciplinary Tribunal.



The figures for black solicitors were yet more out of kilter – they accounted for 1.3% of the profession, but 4.3% of regulatory decisions.



By contrast, white solicitors faced less regulatory action – 69% of matters concerned them, while making up 78% of the profession.



However, the data clearly requires more dissection – as Stephen Friday, chairman of the Black Solicitors Network, points out, work needs to be done to explain why the figures fluctuate between different types of regulatory action; for example, black solicitors were the subject of about 2% of inspections, 4.6% of interventions and 8.3% of referrals to the tribunal.



As a result of the I&E findings, the Law Society commissioned an external consultant to carry out an initial race impact analysis, which forms the basis of a report by Mehrunnisa Lalani, head of equality and diversity on the regulatory side of the Law Society. The move has been welcomed by ethnic minority lawyers’ groups. It is a relatively thin document – reflecting that this is just the start of the process – and also short on hard evidence, which it recommends gathering.

Perhaps unsurprisingly, the consultant found it hard to identify one particular reason that explained the disparity but uncovered several potential contributing factors. However, she emphasised that it did not mean discrimination was present.


The I&E unit receives more than 4,000 items of ‘intelligence’ a year, mostly from the profession, but also from law enforcement agencies, the public and other parts of the Law Society. It then has to assess the information and decide whether to conduct an investigation. On average, 500 firms are inspected each year by I&E, and 55% of inspections lead to regulatory action.


The issue for the Law Society, the consultant says, is whether the criteria used and the way intelligence is assessed disadvantages ethnic minority solicitors in some way. Giving his initial thoughts on the issue, Antony Townsend, the new chief executive of Law Society regulation, says that to ensure there is no discrimination, it is vital to define clear criteria for decision-making.
A wider concern over the Society’s organisational culture was also identified. The report said: ‘Ethnic minority solicitors might be reluctant to seek help and advice from the Law Society, because they may feel that this would be perceived as evidence of them not coping.’


Another possible reason identified was anecdotal evidence of the way the Law Society is perceived by ethnic minority solicitors – as remote and possibly racist. Disturbingly, this was supported by the consultant’s own experience during her ten days’ work at the Society. She reported hearing inappropriate remarks, and took the view that many staff were not at ease with issues of race and could sometimes be defensive when the topic arose.

Mr Friday considers these observations to be ‘dangerous’ by being so sweeping, especially as it is not clear what they are based on beyond anecdotal evidence. He says he has not come across such misgivings about the Law Society among his members.

Sundeep Bhatia, recently elected as joint vice-chairman of the Society of Asian Lawyers, says he, too, is unaware of members raising the issue formally, but adds: ‘In the profession generally there is a mistrust of the Law Society as a regulatory body.’ Mr Townsend says the promotion of equality and diversity is paramount to the new regulation board, which is seeking an open dialogue with groups of solicitors from the autumn.

Culture is a particularly important issue given the discretion afforded to I&E in making decisions. All Law Society staff are required to attend training sessions focusing on equality and diversity awareness, while there is to be extra training for managers on issues such as managing a diverse workforce and the development of a behaviour competence framework on equality and diversity. There has also been instruction on how to conduct impact assessments.

In addition, Ms Lalani and others are in post to support and advise, while an equality and diversity working forum has been established in Law Society regulation to discuss issues, share best practice, promote joint working and monitor progress.
But there are plenty of external factors that could also be at work. Ethnic minority solicitors are more likely than average practitioners to be sole practitioners, while most others work in small firms. Solos tend to find themselves more subject to regulatory action than others, for example ‘because of a lack of skill and capacity to develop an internal audit process to ensure compliance’, according to the report.


These employment patterns could also suggest that ethnic minority solicitors are more likely to work in deprived areas and to struggle financially, it went on. ‘They may not have the skills to keep accurate financial records or be able to afford the services of an accountant.’ This could lead to regulatory action.

However, Mr Friday questions the findings. ‘There are a lot of stereotypes here without the evidence to back them up,’ he protests. Mr Bhatia, himself a sole practitioner in London, agrees that the depiction of solos is ‘dangerous’ and ‘very generalised’. He says: ‘It’s slightly offensive. There are a lot of professional sole practitioners around who work hard, know the rules and keep to them.’

Then there is the type of work. Several years ago, there were concerns that a crackdown on immigration law firms was having a marked effect on ethnic minority solicitors, given that a disproportionately large number of them run such practices – ‘there were rumours that Asian firms were being hit hard,’ recalls Mr Bhatia.

This is a sensitive and highly political practice area where there is added pressure on regulators to do their job, and the report returns to the theme. ‘In most cases where intelligence is received pertaining to immigration, the evidence is not sufficient to proceed,’ it says.

‘However, where there was evidence to warrant an inspection, malpractice was often found. These raised questions about whether the criteria used to justify inspection were more onerous than other areas of practice. Furthermore, did the pressure of scrutiny lead to heavier sanctions than those imposed in similar breaches within other areas of practice?’

Broader cultural issues pose a tricky problem too. The report found evidence that certain cultural norms and financial practices may look suspicious because they do not fit into the rules and regulations written within a British context. For example, an inspection can be prompted by the use of different names interchangeably when purchasing property or making large cash transactions. This is common practice in some ethnic minority communities, but may look suspicious and trigger an intervention by the Law Society, even though on further examination it may be innocent.

The report says: ‘It is therefore important to note that in some communities, solicitors may be expected to provide services tailored to meet cultural and religious practices that may look suspicious and indeed breach the rules and regulations. This is a complex and sensitive issue, because the Law Society has to regulate in the public interest and ensure that clients are protected.’

A final complication, according to the report, is the position of ethnic minority solicitors from other countries who requalify through the qualified lawyers transfer test, but lack understanding of the practice rules and the language, increasing the risk of regulatory action. A review of the test is now planned, with a brief to ensure foreign lawyers are ‘fit to practise’.

But again these findings make Mr Friday uncomfortable because the report acknowledges that further analysis is needed to determine whether any disparities actually exist between those solicitors trained in England and Wales compared to those trained in other jurisdictions.

Further research is central to taking this work forward. Projects include a study to ascertain whether race and ethnicity are key factors in regulatory decision-making, a look at early-warning indicators, and a closer examination of whether the disparities exist for all ethnic minority solicitors or for particular groups.

In addition to the staff training, there will also be work done to assess and address any barriers that may prevent some solicitors from seeking support and advice from the Law Society.

Ultimately, whatever the concerns about the report itself, both Mr Friday and Mr Bhatia praise the Law Society for recognising the problem and taking steps to tackle it.

Mr Bhatia says his experience of the Society is positive – he has been working with it on assessing the impact of the Carter report on ethnic minority legal aid solicitors. ‘The Law Society is doing its best to adapt to a multicultural society and multicultural legal market-place,’ he says. ‘From a personal point of view, I think they are doing their best to change.’