Affirmative Action in the Legal Profession

AuthorDonald Nicolson
DOIhttp://doi.org/10.1111/j.1467-6478.2006.00350.x
Publication Date01 Mar 2006
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 109±25
Affirmative Action in the Legal Profession
Donald Nicolson*
This article examines whether the legal profession should use quotas
and decision-making preferences in recruitment and promotion in
favour of women, ethnic minorities, and those from socially dis-
advantaged backgrounds. It argues that this is necessary to eradicate
current patterns of discrimination and disadvantage. It also argues
that quotas and decision-making preferences do not necessarily con-
flict with appointment or promotion on merit, and hence that con-
sequent unfairness to other applicants is more apparent than real.
Moreover, any potential stigmatization of the beneficiaries of
affirmative action is outweighed by the advantages in reversing the
under-representation of women, ethnic minorities, and those from
socially disadvantaged background, thereby challenging perceptions
of their inferior qualities as lawyers. Finally, practical problems in the
implementation of affirmative action are considered and argued to be
insufficiently serious to stand in the way of its introduction.
INTRODUCTION
For centuries, the legal profession constituted an exclusive club of white,
middle-class men. Although the last few decades have seen a dramatic
increase in female and ethnic minority entrants, research shows that a
successful legal career is far from being equally open to all. This raises the
question whether affirmative action should be introduced by the legal
profession.
A positive answer has implications extending beyond legal practice. This
is because the advanced educational qualifications, and the intellectual and
other skills required of entrants, which are thought to guarantee high quality
109
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Law School, University of Strathclyde, Stenhouse Building, Glasgow G4
0RJ, Scotland
donald.nicolson@strath.ac.uk
I would like to thank Amanda Benstock, Harry Dematagoda, Julie Donaldson, and
Adrienne Shepherd for their research help.
services to clients, mean that appointing and promoting on merit is regarded
as particularly important in professional and other skilled occupations.
Showing that merit is not compromised by affirmative action in the legal
profession thus assists the case for affirmative action in all such occupations.
Nor is it inappropriate to use the legal profession as a test case given the
readership of this collection. Indeed, it can be argued that legal academics
have a special duty to ensure that those they purport to admit to law school
on merit and prepare for practice do not later find their career prospects
hampered by their social background. In addition, for those wishing to
ensure a more general acceptance of affirmative action, persuading the legal
profession that it is just and practicable is a useful starting place, since
lawyers are better placed than most occupational groups to secure an end to
the current legal prohibition on `strong'
1
forms of affirmative action. This is
recognized by the Bar Council
2
which, along with the Law Society of
England and Wales, also accepts that, given the profession's raison d'e
Ãtre in
ensuring access to justice and upholding `people's rights without fear and
favour', lawyers should `take a lead on issues of equality and fairness'.
3
To
this end, they have already introduced detailed measures designed to
eradicate discrimination and promote diversity, including `weak' forms of
affirmative actions.
In arguing that the Anglo-Welsh
4
professional bodies should contemplate
strong forms, I will concentrate on recruitment and promotion quotas, and
decision-making preferences, which require members of previously excluded
groups to be recruited or promoted if regarded as equally or almost as
capable as their competitors (what I will call `tie-break' and `ballpark'
preferences, respectively). I will also limit discussion to the position of
women, ethnic minorities, and those from socio-economically disadvantaged
backgrounds. This is not to deny that other groups have justifiable claims for
affirmative action. However, because of space constraints, and the fact that
the problems of sexuality, age, and religion seem less extensive than those of
class, gender, and race, whereas disability requires and is to some extent
already receiving
5
unique forms of affirmative action, I will only discuss the
`big three', leaving it to others to apply relevant insights more extensively.
110
1 That is, those forms of preferential treatment which require selection panels to choose
recruitment or promotion candidates solely or partly because of their group
membership, rather than simply take action to put some in a position where they
might be more likely to be chosen (such as targeting them in terms of recruitment
publicity or access to training).
2 The General Council of the Bar, The Stephen Lawrence Inquiry Report: Response by
the Bar Council (1999) 15.
3 Bar Council, Equality and Diversity Code for the Bar (2004); The Law Society,
Delivering Equality and Diversity: A Handbook for Solicitors (2004) 2.
4 The Scottish and Northern Irish branches are not discussed because there is very little
information on their demographic background and they have done little to address
discrimination.
5 See n. 3 above.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School

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