Charter for Fairness & routes to real change

Two years ago, in February 2021, Voices of Women at the Chancery Bar was published. Authored by Marcia Shekerdemian KC (former chair of the Chancery Bar Association’s equality and diversity (E&D) sub-committee) and assisted by Nicola Rushton KC (then chair of the same sub-committee), Tina Kyriakides and Elizabeth Houghton, this report was the end-product of four female-only roundtable discussions held in 2019 under Chatham House rules where participants shared their experiences, told their stories and voiced their concerns in a safe environment. (see ‘Voices of women at the Chancery Bar’, Marcia’s article in Counsel’s January 2022 issue telling the story of that report).

Further reports by other Specialist Bar Associations such as the Planning and Environmental Bar Association have identified similar divergence in the practices of their female and male practitioners.

In September 2021 the Bar Council published a report showing trends in barristers’ earnings over the last 20 years, split by sex, race and practice area. The report, which used anonymous income data from self-employed barristers shared by Bar Mutual Indemnity Fund (BMIF) showed that, while there were more women than ever working at the Bar, the gap between men’s and women’s earnings had widened over the period 2000-2020. In the 2022 update, published in October 2022, data showed that women in Chancery (Contentious) practice continue to earn 39% less than men in the same practice area. These huge gulfs in earnings, which were found to varying degrees across all practice areas, have become notorious since publication among women and people of colour at the Bar.

It would appear that progress is not really being made against static criteria so new approaches need to be explored which go beyond repeatedly identifying the problems.

Charter for Fairness in Work Allocation, Career Development, Marketing and Earnings

After Voices was published, the Chancery Bar Association organised two well attended and powerful Zoom Q&A Panel sessions in the Spring of 2021. This led to a discussion document, Routes for Real Change, which we used to direct further roundtable discussions, this time with chambers’ decision-makers: senior barristers and clerking/management.

Now we have distilled all that experience and vision into a two-page Charter for Fairness in Work Allocation, Career Development, Marketing and Earnings at the Chancery Bar. This provides 12 practical recommendations for best practice for chambers – in all practice areas, not just at the Chancery Bar.

Our aim is that chambers will adopt it on their websites, use it to review internal processes and start conversations about how they can be improved. This will be for the benefit of all but especially women practitioners and those from other groups underrepresented at the Bar.

We are proud of the Charter and are keen to publicise it as much as possible. The 12 points for best practice are set out in the box above.

So please – adopt the Charter for Fairness and publish it on your websites. Help spread the word.

The Chancery Bar Association has also been giving support to our members in adopting the Charter and its recommendations. Alongside seminars on best billing practices, a workshop on fair allocation of work has been organised for the new year, in conjunction with the Bar Council.

The Charter provides a point of reference for all Chambers large and small, Chancery or not, to put into place policies and practices to assure those in leadership positions that they are doing everything they can to advance the careers of all their members equally. No doubt the Bar Council will continue to monitor earnings trends at the Bar and chambers will need to be ready to explain to their members, male and female, if change is not being achieved.

Finally, we must highlight the Black Inclusion Group’s report, also spearheaded by the Chancery Bar Association’s E&D committee, with that of Combar and TecBar, which makes for sobering reading.

The Charter for Fairness: 12 points for best practice

1. Implement policies for monitoring work opportunities for both unallocated and allocated work (including led work) which include recording on chambers management systems all the members of chambers to whom an opportunity has been offered; all those who were put forward and why the final allocation was made. To be monitored by senior barrister members and clerks on a regular basis at agreed intervals, with reporting (to chambers’ management committee and/or E&D officers) on discrepancies and suggested improvements.
2. Monitor earnings at all levels of seniority and by practice type. Where chambers have not chosen to have earnings transparency, consider sharing anonymised earnings figures in bands of years of practice or ranges, including (on request) with individual members for practice review meetings.
3. Implement regular practice reviews between a senior clerk/team leader and each member of chambers at least once a year, scheduled by the clerking team, unless a member says they do not want one. Have anonymised data on allocation of work and earnings of those in a similar call band (as well as for that individual) available for discussion at practice reviews.
4. Clerks initiate discussions of longer-term ambitions at practice reviews (including silk, judicial, practice areas as appropriate) as well as actively enquiring into work a member would want to develop in the shorter term.
5. Always be alert to challenge assumptions, including one’s own, about what areas of work particular members might want to work in.
6. When juniors are allocated to silks or other led work, ensure all potential juniors are fairly considered and record the instruction as an opportunity on the chambers management system. Do not simply accept repeated bringing-in of the same junior. Consider formally treating silks/leaders as “clients” for work allocation purposes.
7. Arrange regular training for clerks, appropriate to the level of seniority, on fair work allocation and non-discriminatory work practices, fairness in recruitment and management.
8. Consider and where possible implement systems to ensure all work is billed fully and fairly. This includes not charging a lower hourly rate or brief fee for those that work part time or who have returned from extended leave. Ensure that any request (by solicitors or counsel) for discounting fees or reducing rates is actively questioned. Consider the use of time-recording software chambers-wide if a lot of work is done on a time basis.
9. Recognise and challenge the tendency most people have to sponsor individuals who are more like themselves. Actively encourage a more widespread and thoughtful system of sponsors. Implement formal mentoring schemes which include a choice of mentors/mentoring groups. Consider unconscious bias training for members and staff.
10. Organise as wide a range of marketing activities as possible, with different types of marketing strategy, times of day, activities, and venue. Encourage different members to use the strategies they are more comfortable with.
11. Have openness to all members about marketing strategies being used, including regular newsletters on both past activities and forthcoming opportunities, and on the submissions made by chambers to directories.
12. Encourage open communication and do not make assumptions about matters such as childcare, return to work after extended breaks (including parental leave, illness, bereavement and other), working from home preferences and availability if working part-time. Seek actively to ensure that those working flexibly have access to high quality and lucrative work.