Many law firms pay thousands of pounds to PR agencies and marketing professionals to get their names in print in the national press, and there are some who say that all publicity is good publicity.

However, a certain partner of a national firm and his colleagues who have, no doubt, invested hugely in time and money to promote their diversity credentials may currently be taking a different view. Headlines such as ‘Top Lawyer and a Tricky Question of Motherhood’ (Daily Telegraph, 2 February 2010) can hardly be described as welcome, though from the viewpoint of the profession as a whole there will be some who think that the episode does no more than reveal the truth about the real record on diversity in the law, in all its manifest forms.

There is an undoubted tension between the pressure of the 24-hour demands of some aspects of legal work and the pressures of family life, but these demands are not necessarily irreconcilable. It is noticeable that, according to a recent survey, the firm with the highest number of women partners was a firm that was not involved in transactional work, but even then only 35% of partners were women – a significant way short of parity. Furthermore, the available statistics clearly show that although the number of women entering the profession has exceeded the number of men for a number of years, this is not matched by the number of women attaining partnership.

Mindset changeSo why is this and what needs to be done to change things? Essentially the answer lies in the mindset of those making the decisions. All too often the question asked by male partners (and indeed some female partners) when faced with a female candidate, either for a job or for partnership, who is either of child-bearing age or has already produced, are redolent of those apparently in the email which led to the ‘question of motherhood’ incident and which the press were quick to seize on. Not everyone reduces such thoughts to writing and then circulates their musings to colleagues, and there must be a lesson there for us all in this electronic age. However, if the effect of this publicity is to cause many of us to question our ‘subconscious’ views, as employment tribunals often refer to them, then maybe this is an awakening that is long overdue.

It is not so much a case of asking the wrong questions, but the right questions at interviews. If there is a talented and able candidate presenting, of either sex, the question should be what can we do to get the best out of this candidate and how can we best support them. Intrusive questions about someone’s personal circumstances are simply not acceptable. Attempts to break this basic rule by seeking to inject a degree of apparent subtlety into the process are doomed to failure and can so easily be exposed, as this incident testifies.

Those in decision-making positions have to do more than pay lip service to change. Some firms have demonstrably sought to tackle the sex equality issue by making full use of the options that technology now offers, devising flexible ways of working which work for the firm, the individual and most importantly their clients. These are welcome steps and it is unrealistic to expect things to change overnight. However, incremental steps along this path must be matched by concerted and sustained efforts by those at the top of any law firm to inculcate a culture within the organisation that truly embraces and promotes equality at all levels, and allows its best people to thrive. If such a culture is not deeply embedded, accidents can too easily occur and the subconscious layer of discrimination will again raise its ugly head.

Then the fallout may not necessarily be limited to unwelcome publicity, but a hefty payout on the end of a lost discrimination case.

Jill Andrew is an employment partner at Marriott Harrison. She is the author of ‘Discrimination issues for law firms’, Practice Management Handbook (Law Society 2009), and editor of the Law Society’s forthcoming publication, Managing People in Legal Businesses