Disparate measures

The over-representation of Black, Asian and minority ethnic solicitors in complaints about potential misconduct and disciplinary outcomes has been generating controversy for years. Indeed, it is nearly a decade since a landmark report by professor Gus John cleared the regulator of institutional racism – an outcome that prompted a fierce backlash from a coalition of representative groups. 

Any hopes that these disparities might have withered away as the profession evolved were misplaced. In 2020/21, Asian solicitors made up 12% of the practising population but 18% of those reported to the SRA and 25% of those taken forward for investigation. Black solicitors, comprising 3% of the practising population, made up 4% of those reported to the SRA and 5% of those taken forward for investigation.

A week ago, the SRA published the results of the first stage of its latest project in this area, probing the longstanding imbalance in complaints to the SRA (which fell outside John’s remit). This was a review of the literature.

It is early days, but the review does not take us much further forward. Academics tentatively suggest that ‘socio-cognitive biases’ – prejudiced ways of thinking that affect people’s ability rationally to assess the person providing the service – may be one explanation.

A second relates to where solicitors work and what they do. ‘For example,’ the review says, ‘Black, Asian and minority ethnic solicitors may be over-represented in work areas or firm environments and circumstances that by their very nature are more likely to generate complaints.’

This is familiar territory. For example, back in 2014 John’s report alluded to the wider regulatory challenges faced by small firms and sole practitioners in particular: with minority ethnic solicitors over-represented in both categories. Such practices ‘lack financial cushions against temporary cashflow problems and are less able to manage risk and ensure best practice is adhered to,’ he argued.

SRA chief executive Paul Philip tells us that there is ‘no simple explanation’ here. ‘We now need to look into the factors identified in greater detail in order to…try and understand how these issues can be addressed,’ he adds. As a holding statement, that seems perfectly fair. With one quibble – the regulator has been ‘trying to understand’ these anomalies for almost as many years as it has existed.