On the 5th November, the Bar Standards Board (BSB) published new analysis surrounding its data on barristers’ income by gender and ethnicity. The research demonstrates that female barristers are likely to earn less than male barristers and that those from Black, Asian and other minority ethnic groups are likely to earn less than White barristers. This analysis remained consistent when looking at the income of barristers practising within the same area of law, within the same parts of the country, and amongst those with similar seniority in terms of how long they have been practising.
The report shows that income differences are particularly marked when looking at gender and ethnicity together, with female barristers from minority ethnic backgrounds being the lowest earning group and white male barristers being the highest earning group.
The BSB has pointed out that they collect data on income as part of the annual process by which barristers renew their practising certificates. The report examines the gross income of barristers and is based entirely on figures from before the impact of the current pandemic. Around one-fifth of barristers are employed and for them by “income” the report refers to their gross income before tax and national insurance etc. For the four-fifths of barristers who are self-employed, their “income” is their total fee income (excluding VAT) before they pay the costs of their chambers, which is estimated typically to take between 20 and 40 per cent of their income.
BSB Director General, Mark Neale, said: “This report is based on figures relating to barristers’ incomes in 2018 so predates the current pandemic which has had a significant effect on many barristers’ incomes. It is not the levels of incomes that are our focus here, however, but the disparities between different groups. These disparities are marked and cannot be explained away by seniority, geography or area of law. The disparities underline why the Bar Standards Board will continue to prioritise its work on diversity and challenge the Bar to do more and better in combatting discrimination affecting the progression of women and of barristers from Black, Asian and Ethnic Minority backgrounds.”
Read the full report on the BSB’s website. (PDF)
The New York State Bar has published the findings by the special adviser on equal justice, Jeh Charles Johnson. Over the course of the review Mr. Jonson conducted 96 interviews involving 289 individuals from across the state. This included interviews with judges, court clerks a range of practitioners within the system, and others involved in the New York State Courts. The two key findings from the report were that individuals of minority backgrounds were being fundamentally disadvantaged in terms of both the process and outcome of the courts. The report found that under-resourcing was disproportionately affecting minority communities, leading to unfair treatment. The report also found multiple instances of highly racist behaviour, and racist language being used by court employees, a matter of serious concern.
The report then went on to suggest a number of key responses that could be undertaken to improve the situation. These included:
- Taking a top-down zero-tolerance approach
- Expanding unconscious bias training
- Addressing juror bias
- Strengthening the Inspector General Process for Bias Complaints
- Improving data collection around bias
- Addressing diversity and inclusion in HR practices
Mr. Johnson said within the report: “This review comes at a particularly tense moment for race relations in America. Black Americans watch an unrelenting parade of video images of their people’s lives snuffed out like animals at the hunt, at the hands of law enforcement in this jurisdiction and beyond. They conclude, with considerable evidence to support it, that in the eyes of law enforcement their lives do not matter as much as those of whites. The very notion of equality under law is today cast in serious doubt. You are obviously committed to change and the assessment of hard questions, which is why you asked for this review. In my assessment as a lawyer, a student of history, a former public official, and as an African American, this is a moment that demands a strong and pronounced rededication to equal justice under law by the New York State court system. It is also my experience that credibility will only be earned if the public sees both strong commitments to reform at the front end and a sustained effort to follow through on those commitments, during your tenure as Chief Judge and beyond. ”
Read the full report here (PDF).
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
At its July 16 meeting, the State Bar Board of Trustees approved a plan aimed at improving equity in the attorney discipline system, following up on the bar’s first-ever study on racial disparities in the disciplinary system. The first group of reforms aim to expand representation by counsel when an attorney faces a disciplinary investigation.
“The State Bar is moving forward with concrete, specific actions that we believe will not only target the disparities noted in Professor Farkas’s research, but also make the discipline system work better for everyone.” said Donna S. Hershkowitz, Interim Executive Director.
The study found that lack of representation by counsel during an investigation into an attorney by the State Bar was a statistically significant predictor of later discipline, the report also revealed that African American respondents were represented by counsel about half as frequently as other groups in the study.
The State Bar has said that they will:
- Measure and report data on representation for attorneys in the discipline system;
- Pilot-test messages informing respondent attorneys of the value of representation by counsel in disciplinary proceedings to evaluate the most effective method of encouraging representation; and
- Work with the Association of Discipline Defense Counsel to develop and distribute a roster of attorneys who could provide low-cost and pro bono case evaluations to respondent attorneys.
Read the full report, or read the State Bar Association’s announcement about the changes.
A new article by Will Douglas Heaven, senior AI editor at the MIT technology review has called for an end to the use of predictive policing and justice, powered by AI algorithms. The article looks at a number of ways that race feeds into AI algorithms, and how this can detriment minorities. The article suggests that current AI systems, when applied to justice, end up continuing to reinforce existing systemic racism, and potentially lead to an increased bias, as judgement formed by a supposedly objective system, then reinforces existing bias.
Heaven, therefore, suggests that until AI has been developed to the point where it can be genuinely objective, it should not be used in such an important decision-making capacity, particularly as discussions continue in the US and globally around racism and bias in the justice system.
Visit the MIT technology review to read the full argument.
The American Bar Association has announced the launch of the ABA Racial Equity in the Justice System website. A central resource aimed at providing information to ABA members, attorneys, the profession and the public on issues such as addressing bias, racism and prejudice in the justice system and society. The website will include resources such as ABA policies and positions; articles from publications; statements from the ABA; model rules and standards; CLEs and webinars; toolkits and training; links to ABA diversity, equity and inclusion entities; resources addressing courts and access to justice, law enforcement, and related statements from other bar associations and affinity bars.
ABA President Judy Perry Martinez said “The American Bar Association is intensifying its efforts to ensure justice and fairness for all … For too long, African Americans have borne the brunt of racism through laws that unjustly and disproportionately impact people of color. Through efforts like this website, we want to make it easier for lawyers to access information and become more involved in reforming our laws and improving the justice system.”
Visit the ABA Racial Equity in the Justice System website. See the ABA news release.