Diversity: law firms push for BAME representation amid Black Lives Matter protests
MARGARET TAYLOR
The killing of Black American citizen George Floyd by a white police officer in late May gave fresh momentum to the Black Lives Matter movement. Subsequently, businesses of all stripes declared that racial equality would become a key feature of their employment practices.
Law firms mobilised quickly. In the United Kingdom, over 20 firms signed up to recruitment consultant Rare’s Race Fairness Commitment, which requires signatories to publish data on the proportion of Black, Asian and minority ethnic (BAME) lawyers they hire and their progress in comparison with white colleagues.
Such initiatives enable firms to publicly commit to improving their records on promoting racial diversity.
However, Stephen Bowman, Co-Chair of the IBA Law Firm Management Committee and Vice Chair and Managing Partner of Canadian firm Bennett Jones, warns that as the ultimate goal is to make legal businesses more representative at the senior end, it will be some time before these pledges start to bear fruit.
‘The pipeline to become a partner in a law firm in Toronto is somewhere between eight and 12 years after you become a qualified lawyer and on the day they get their diploma students will have done seven years at university,’ he says. ‘That’s a long road.’
Clients are increasingly keeping their advisers focused on the end result. Last year, technology corporation Intel announced that as of January 2021 it will no longer instruct firms whose United States equity partnerships do not include at least ten per cent of under-represented minorities.
Despite this trend, Bowman notes that clients can fail to hold their advisers to account because they are not always consistent in ensuring their demands are met.
‘Some, when they are selecting counsel, will say at the outset that diversity and inclusion is going to be a factor in their decision-making. It’s not universal, but pretty common,’ he says.
‘But there will be cases when they will contradict themselves by saying “on this matter we want the best team,”’ adds Bowman. ‘It’s not like they are going to say explicitly “forget about diversity,” they will just underscore this has to be your very best people.’
“Some clients, when they are selecting counsel, will say at the outset that diversity and inclusion is going to be a factor in their decision-making. It’s not universal, but it’s pretty common
Stephen Bowman
Co-Chair of the IBA Law Firm Management Committee
As partnerships and management teams of most international firms remain dominated by white, middle-aged men, implicit in the demand for the ‘very best people’ is the notion that those people will be white, middle-aged men. If firms are not hiring candidates from diverse backgrounds they cannot promote them into senior positions, leading to the self-perpetuating idea that white male leaders are ‘the best.’
Abhijit Mukhopadhyay, Secretary of the IBA Corporate Counsel Forum and President (Legal) and General Counsel at Hinduja Group, notes that, even when they have made their own commitment to promoting inclusion, clients sometimes have no choice but to accept a lack of diversity from their advisory teams.
‘I’m fighting a cross-border litigation, which is extremely complex and I have ten law firms in different jurisdictions,’ he explains. ‘Absolutely, I’d choose the most diverse firm if on all other measures there were two the same. We’re a business of Indian origin and I’d love to go with a firm that has complete diversity, but at the end of the day I need to win.’
Clifford Chance has set itself targets for maintaining its commitment to racial diversity. Putting a numerical figure on where it wants to be, and by when, was judged to be the best way of ensuring success: the firm has pledged that 15 per cent of new partners and 30 per cent of senior associates in the UK and US will come from a minority ethnic background by 2025.
‘If you set targets, it’s incumbent on you to publish the results every year,’ says Laura King, Clifford Chance’s Global Head of People and Talent. ‘We emphasise with the entire firm that the people who are interested in these results are the people we are interested in attracting: clients and talent.’
The firm’s data indicates that those from minority ethnic backgrounds are disadvantaged at the recruitment stage. To address this, firms may have to intervene even earlier in prospective candidates’ careers. This, King says, would require a ‘sector-wide, industry-wide or even country-wide’ focus.
Amir Bocayuva Cunha, Member of the IBA Law Firm Management Committee Advisory Board and Corporate and M&A Managing Partner of BMA, highlights that Brazilian firms were only able to address their own racial inequalities after inequalities at an educational level were examined first.
Noting that Afro-Brazilians in particular are under-represented in education and professions, he says a 2012 affirmative action law, requiring 25 per cent of public university places to be reserved for candidates of African or Indian descent, has meant firms finally have access to a more diverse talent pool.
‘On average it takes 12 years to become a partner so to reach the highest levels will take some time, but if you took a picture of my firm three years ago you would hardly see a Black lawyer,’ says Cunha. ‘Now we have been able to engage ten to 15 Black lawyers.’
A message from the IBA President
Dear friends,
Seven months on from the first reported death from Covid-19, we are still only beginning to get a sense of the full impact this virus will have on our lives and our global community. Only three months ago, the prevailing view was that the world would pass the peak of the health crisis in the first half of 2020 and the peak of the economic damage in the second half. Now we can clearly see that, despite better news in places, such as Europe and some parts of Asia, globally, the number of new cases of the virus continues to rise, so the economic consequences are certain to be deeper and more prolonged.
It is a remarkable time to be a lawyer. Many of our clients are facing unique and unprecedented challenges in understanding how best to navigate a way through the months ahead, and this will require all the skills and insight we are able to offer. What is providing the real complexity is that alongside the severe slump in global demand, there is an equally real acceleration in the disruption of accustomed business models, generating commercial peril but also some extraordinary growth opportunities. The financial markets have perhaps never demonstrated such a diversity of gains and losses, with some of the major technology and biotech businesses in particular becoming much more highly valued. Such contrasts of fortune, coupled with the lowest interest rates we have known, will no doubt generate much restructuring.
There has never been a more important time as a lawyer to have a global view of your sector and your specialism, and I would like to pay tribute to the remarkable work of our committees and our staff in delivering so much expert content to help members, via our website, our publications and our webinars – we have staged no less than 76 webinars, attracting over 32,000 viewers, in the first half of the year. Knowing as we do how vital the efficiency of international cross-border work and trade ties will be to economic recovery and the resilience of populations, such committee work at this time makes a special contribution.
While much of this content has been strongly rooted in specialisms, your Association has also been very focused on contributing work and ideas to how the world might ‘build back better,’ learning from this crisis and from our societies’ past mistakes. The gaps in both global and national governance are a threat to us all. On issues from protection of freedoms to climate change to diversity and inclusion to mental wellbeing, we have made proposals and recommendations, conducted research and broadened the debate. Our website and digital publications will continue to highlight and update you on these endeavours.
At the heart of all we do is the body of international law, and the principles and ethics of our profession, which continue to stand proudly as a precious blueprint for a better world: so many of the catastrophes which face the human race flow directly from derogations from this blueprint. As lawyers and as thought leaders in our profession – the latter a role we each express more fully through our membership of and support for this Association – we must continue to press and advocate for these principles to be more fully embodied in all our communities. Together let us ensure that, in this crisis as in so many earlier ones, the contribution of lawyers to our fellow citizens’ greater wellbeing is a valuable part of the story.
Wishing you and your loved ones perfect health and safety,
Horacio Bernardes Neto
President, International Bar Association
Virtually Together Conference open for registration
The IBA 2020 – Virtually Together Conference, taking place between 2 and 27 November 2020, is now open for registration. The online conference will provide an exciting new way to bring the IBA and the world’s legal community together in a spirit of shared purpose. In this period of uncertainty, it is more important than ever that relationships are maintained, old friends greeted, new contacts made and for knowledge and experiences to be shared.
Delegates will benefit from an extraordinary programme of more than 250 sessions offered by IBA committees, spread over four weeks and available live, offering the opportunity to participate and react in real time to the presentations from leading global practitioners, or on demand at your convenience. There will also be substantive and interactive professional and social networking opportunities taking place throughout the month.
Above all, the Virtually Together Conference provides the opportunity to enjoy the virtual experience of what an IBA Annual Conference offers.
The spectacular line up of high-profile international speakers currently includes:
- John Kerry, US Secretary of State, 2013–2017;
- Martin Luther King III, global human rights activist;
- Mary Robinson, 7th President of Ireland;
- Gordon Brown, former Prime Minister of the UK; and
- Fatou Bensouda, ICC Prosecutor.
Find out more about the Virtually Together Conference and register here.
Contested Histories in Public Spaces project
Over a period of three years, a group of global experts convened by the Institute for Historical Justice and Reconciliation (IHJR), the IBA and the Salzburg Global Seminar (SGS), has been preparing a volume of eight in-depth case studies on contested legacies in public spaces, which is due for completion later this year.
This constitutes part of a wider IHJR project, ‘Contested Histories in Public Spaces,’ designed to analyse controversies over statues, monuments and other representations of disputed historical legacies in public spaces. The project aims to provide decision-makers, educators and policy planners with a set of tools to assess historical contestations effectively and responsibly.
There have been several iconic cases over the past few years that have highlighted the public’s demand to reassess the physical representations of historical figures. A recent example includes the toppling of the statue of 17th century slave trader Edward Colston in Bristol during the Black Lives Matter protests in June. Similarly, there have been calls to remove the statue of Confederate General Robert E Lee, located in Charlottesville, Virginia. These two statues, along with many more, have been the centre of controversy for several years and conversations have been reignited due to the ongoing activism stemming from the Black Lives Matter movement.
Read digests of the case studies
IBA leadership Q&A among latest webinars
On 30 July, the IBA held a Q&A webinar session featuring the IBA President, Horacio Bernardes Neto, and the IBA Executive Director, Dr Mark Ellis. The session focused on how the IBA has coped with the Covid-19 pandemic and how it has moved to a virtual organisation.
In addition to taking questions from the audience, the President and Executive Director spoke about the IBA’s Virtual Conference taking place in November; the newly created £180k Legal Aid Fund; and how they are actively supporting their staff and the rule of law in these challenging times.
The Q&A is one of the latest webinars the IBA has hosted over the past several months. Others that have taken place recently include Recipes for disaster, how risk allocation is a determining factor in a successful project, presented by the IBA International Construction Projects Committee, and Client development in the post-Covid era, from the IBA Law Firm Management Committee.
View recordings of IBA webinars
IBA focuses on mental wellbeing in the legal profession
The IBA has embarked on a global project aimed at addressing the mental wellbeing of legal professionals as the Covid-19 pandemic exacerbates tensions in professional and personal lives. The key initial phase of the project consists of two global surveys – one for individual lawyers, the other for law firms and other legal institutions, including bar associations, law societies and in-house legal departments. Available in English and Spanish, the surveys are anonymous and take approximately ten minutes to complete.
The data gathered from the completed surveys will provide insight into issues, including the pressing mental health concerns of legal professionals and the support they can expect to receive from their workplaces, bars and law societies.
The project is an initiative of the IBA Wellbeing Taskforce, which has been convened by IBA President Horacio Bernardes Neto. This will be led by the IBA Bar Issues Commission with assistance from the IBA Legal Policy & Research Unit. Mental wellbeing within the legal profession has been one Mr Bernardes Neto’s key priorities. The Taskforce is a precursor to establishing a permanent body within the IBA to address the mental wellbeing of legal professionals on a continuing basis.
Complete the survey for individual lawyers
In memoriam: José Eduardo Carneiro Queiroz
The IBA was greatly saddened to learn of the passing in June of José Eduardo Carneiro Queiroz, Managing Partner of the Brazilian law firm Mattos Filho.
Specialising in Finance, capital markets as well as corporate and M&A matters, José Eduardo became Managing Partner of Mattos Filho in 2015. In 2019, he won Latin Lawyer’s Law Firm Leader of the Year Award, in recognition of his ‘novel and highly successful leadership style.’
José Eduardo was particularly supportive of his firm’s efforts to contribute to the international legal community as a whole and to promote human rights, diversity and inclusion, and the rule of law. As a great supporter of the IBA, under José Eduardo’s leadership Mattos Filho significantly increased its participation in IBA committees and conferences. He also introduced a number of initiatives within Mattos Filho, including a drive to increase diversity at the firm.
The IBA’s thoughts are with José Eduardo’s family, friends and colleagues at Mattos Filho at this time.
IBA co-publications available now
The IBA’s Section on Energy, Environment, Resources & Infrastructure Law (SEERIL) recently co-published Energy Justice and Energy Law, a collection exploring energy justice in detail, with Oxford University Press. The book addresses the importance of achieving energy justice for all, especially in light of the urgent climate crisis. It also explores the connection between energy justice and social issues, such as discrimination and poverty.
Energy Justice: IBA members are entitled to a 30 per cent discount using the code ALAUTHC4 at the OUP site (valid until 31 August 2020).
Corporate Social Responsibility: use code 25SUM2020 for a 25 per cent discount at the Wolters Kluwer site.
Additionally, the IBA and Wolters Kluwer have co-published a book titled Corporate Social Responsibility – Sustainable Business: Environmental, Social and Governance Frameworks for the 21st Century. Edited by Rae Lindsay, member of the IBA’s Business Human Rights Committee Advisory Board, and Roger Martella, SEERIL Council Member, the book explores the evolving field of corporate social responsibility (CSR). It shows how CSR has evolved to account for societal pressures, environmental and human rights impacts, and more. The book also serves as a reference tool for companies looking to include CSR into corporate governance.
Covid-19 crisis poses challenges for insurance industry
JOANNE HARRIS
The Covid-19 crisis has highlighted the complexities of claiming on insurance in the wake of a pandemic. For the insurance industry, the crisis has presented its own challenges, and insurers must now consider, for example, how to reshape policies for a post-Covid-19 world.
When the pandemic hit, many businesses found their insurers would not cover for a pandemic through business interruption insurance. Meanwhile, holidaymakers trapped abroad, discovered their travel insurance would not help them get home. As governments and companies globally grapple with the challenges created by the pandemic, the debate over how insurers should respond continues to rage.
Issues with insurance were highlighted early on. In the United Kingdom in March, pubs and restaurants expressed concern that the government – at one point before the more extensive UK lockdown - advised customers to stay away but stopped short of telling pubs and restaurants to close, an order which could have enabled them to file business interruption claims.
The UK Financial regulator, the Financial Conduct Authority (FCA), has brought a test case against a pool of eight insurers, to seek legal clarity on business interruption insurance. It’s an attempt to resolve doubt for businesses that are uncertain over the status of their claims. The FCA has identified 17 policy wordings capturing key issues under dispute, and wants to establish whether businesses with these policies are covered in respect of loss sustained due to the pandemic.
The announcement of the case came soon after hundreds of small businesses wrote to the Association of British Insurers (ABI) to say a refusal to pay business interruption insurance would result in the collapse of thousands of firms.
The ABI said the sector expected to pay out at least £1.7bn in claims as a result of the Covid-19 pandemic, but added insurers could not pay out on claims for which they had not charged a premium and that most business policies did not cover pandemics.
‘No country in the world routinely provides affordable standard insurance cover against the risks of a global, viral pandemic but we will continue to look for future insurance solutions, while ensuring we fulfil the promises we have made to protect your businesses against the risks included in your insurance contract,’ said ABI Director General Huw Evans, responding to the letter from small businesses.
In the United States, several states are proposing legislation that would require insurers to cover Covid-19 claims, regardless of policy wording. The US National Association of Insurance Commissioners issued a statement at the end of March opposing the proposals, saying this would ‘create substantial solvency risks for the sector, and significantly undermine the ability of insurers to pay other types of claims’.
Insurers are already beginning to identify risks related to Covid-19 litigation. A report by UK law firm RPC and its global allies, published in late May, anticipates a spike in notifications on directors’ and officers’ policies, with shareholder class actions already filed in the US. Firms globally are also expecting litigation against directors of companies that may have failed to put into place Covid-19-related contingency plans.
In an analysis published in May, consulting firm PwC suggested that ‘companies that provide travel, short-term disability, business interruption and other specialty lines of insurance are likely to face mounting claims.’
PwC noted that the pandemic could cause losses across a variety of business lines, resulting in a domino effect of claims. It suggested that insurers should update loss recognition testing models, reassess volatility and make additional provisions for adverse circumstances in anticipation of increased claims and pressure on liquidity.
The impact for insurance customers is less clear at the moment. Alejandro Paya, Senior Vice-Chair of the IBA Closely Held and Growing Business Enterprises Committee and a partner at Cuatrecasas, says he is expecting more Covid-19-related exclusions in warranties and indemnities insurance taken out ahead of M&A deals, but he still thinks those companies that are planning deals will be able to find cover.
‘Insurers may have an appetite to try deals because there are fewer deals,’ Paya notes. ‘I haven’t heard of costs increasing, but it’s difficult to say because I haven’t insured any new deals. For those deals that make sense there will be insurance, of course.’
The RPC report suggests that adding Covid-19 exclusions into future insurance policies will be challenging, with broad or vague exclusions potentially giving rise to future claims, but with underwriters ‘compelled’ to introduce exclusions as re-insurers will be unwilling to assume liability for Covid-19 risks.
The FCA provided guidance to insurers on how to re-assess the value of their products, directing them to review product lines by the end of the year. Insurers worldwide will have to undertake similar exercises to ensure their offerings to clients are fit for purpose in the post-pandemic world.
The crisis will also certainly prompt those looking for insurance to closely examine policy wordings before buying what remains a crucial safety net for millions of businesses and individuals worldwide.