As general counsel in the west demand greater diversity and inclusion from their legal advisers, law firms in Asia must step up to the plate. But just how committed is the region’s legal profession to delivering such change? Vandana Chatlani reports

In 2019, 170 companies including Getty Images, Etsy and Heineken USA published an open letter accusing law firms of a lack of diversity, particularly at the partnership level, which remains “largely male and largely white”.

The same year, 65 general counsel from the UK and European companies signed a statement of support to increase diversity and inclusion (D&I) across the legal sector. The number of signatories has grown to more than 100. The group – General Counsel for Diversity & Inclusion (GCD&I) – is led by a board comprising general counsel from multinationals Shell, BHP, Vodafone, Anglo American, Unilever and Diageo.

At the end of 2021, Microsoft UK also announced that it would award law firms a financial bonus of up to 3% on their annual fees if they met the tech company’s 2022 diversity targets.

GCD&I pledges to promote diversity within its in-house teams and in the wider business community, consider diversity in its hiring, and partner with law firms to adopt best practices in D&I. The organisation has drawn up a framework with broad guidelines that both in-house counsel and law firms can use to drive D&I initiatives in a purposeful and practical manner.

But across Asia, the demand for D&I has been slower to catch on.

“Expertise and competitiveness are the most important criteria when selecting a law firm,” says Chae Jooyup, vice president and general counsel at SK Biopharmaceuticals in Seoul. “We don’t put much emphasis on diversity and inclusion itself … [but] D&I may increase the expertise and competitiveness of a law firm in the long run.”

OUTSIDE THE BOXDerek Chin, executive director at investment holding company Berjaya Sports Toto in Kuala Lumpur, shares a similar view. “What is most important to me is the level of expertise, quality of advice and service standards that a law firm has, or can provide, to meet my purposes. I would prefer to work with law firms that are more diverse and inclusive, although that would not be a decisive factor.”

Janice Lee, a senior adviser at Kim & Chang in Seoul, adds: “Clients certainly emphasise their commitment to D&I, and more often than not we have received suggestions or comments to have female lawyers on particular matters. However, by and large, it is rare that they demand that we provide diverse teams.”

OUTSIDE THE BOXA different trajectory

Companies and law firms across Asia appear to be on a different trajectory than their counterparts in the West, where racial and ethnic tensions have been at the forefront of D&I initiatives. The Black Lives Matter movement, for example, further propelled debate around racial divisions.

“The social tensions that have historically arisen in post-colonial Western societies have acted as a catalyst for these positive initiatives,” says Tiziana Sucharitkul, co-managing partner and director of dispute resolution at Tilleke & Gibbins in Bangkok. “The leadership at local-headquartered firms [in Asia] just aren’t operating within that context.”

While law firms and companies across Asia share some of the same diversity challenges as their Western equivalents – gender imbalances and discrimination against LGBT+ (lesbian, gay, bisexual, transgender) communities, to name two – the hurdles in each country vary dramatically.

OUTSIDE THE BOX“Asian countries just can’t all be painted with the same brush,” says Sucharitkul. “In many Asian jurisdictions, law firms actually have a lot more women in leadership than comparable Western or Westernised jurisdictions or firms because of underlying gender diversity in the broader workforce. That’s particularly true in societies where intrinsic family structures provide more domestic support in childcare – Thailand for one, but also Indonesia, China, the Philippines, etc. In fact, Southeast Asian countries have some of the highest proportions of women in senior business leadership in the world.”

Law firms and companies must also consider intersectionality and the manner in which multiple diversities can impact personal experience. “The lived reality of a woman with a disability who comes from a poor socioeconomic background or a lower caste may be much worse compared with a woman with a higher financial status and upper caste background who is neurotypical,” says Aparna Mittal, founder of the Samāna Centre for Gender, Policy and Law in New Delhi.

“In the Indian context, I have worked with clients on ways to mask a CV because someone’s name can give away their caste and religion. In India, conversations must include caste discrimination as well.”

OUTSIDE THE BOXJanet Wang, senior corporate responsibility adviser at Linklaters in Hong Kong, says: “If we had a candidate [with disabilities], we would do our best to find a solution. I can’t see us turning away someone just because they are in a wheelchair.”

The existence of entrenched beliefs, societal structures, demographic norms, cultural differences and laws within a jurisdiction, and even within individual organisations, means that diversity can never work as a one-size-fits-all policy.

“Southeast Asia is an incredibly diverse region, and the issues faced by ethnic minorities in Myanmar just aren’t analogous to the issues faced by the LGBT+ community in parts of Indonesia, or the transgender community in Thailand, or any other minority group facing the specific issues inherent to each country,” says Sucharitkul.

Policymakers need to understand the cultural context and local nuances applicable to each country before instituting new D&I rules. “What is a minority ethnic group in many countries in Asia is often a function of both race and religion,” says Pallavi Gopinath Aney, Allen & Overy’s D&I partner for Asia-Pacific based in Singapore. “The construct of considering all persons of colour is a helpful tool for monitoring D&I at a global level, but in Asia we constantly come up against local complexities. We have a global lens on diversity – a zero-tolerance approach to intolerance – but we are constantly crafting policy that is applicable to the local context.”

Pallavi Gopinath Aney, Allen & OveryQuestioning and consultation

In order to devise an effective D&I policy law firms, like other organisations, must first establish a starting point and a safe space in which to question and explore their inherent belief systems. Understanding unconscious bias is often a key place to begin.

Mittal, regularly delivers training on unconscious bias as a means to educate her clients about their decision-making patterns. “Without trying to force a client down one path, the idea is first to understand and introspect – everything needs to be re-examined,” says Mittal. “There are so many dimensions to diversity and discrimination. In India, there are also geographical issues, for example, where people from the northeast of the country are talked about in a particular way, or where someone’s clothing or accent becomes a source of ridicule.”

Mittal has also conducted training across other parts of Asia, noting ethnic dimensions in places such as Thailand and Singapore. She emphasises the need to pick apart policies and processes that can reveal barriers to D&I. “When I undertake specific assessments, for example, on gender or LGBT+ inclusion, they cut across everything. Where are you getting your CVs from? What does your promotion curve look like? What specific policies and benefits have you extended? We take a microscopic look at the entire life cycle of an organisation.”

“Localising diversity policies is absolutely essential,” says Sucharitkul, from Tilleke & Gibbins. “For companies headquartered in Asia, that’s going to mean really taking stock before implementing anything … identifying who is in the company, comparing that to the diverse makeup of the countries that you’re operating in to the extent possible, seeing who is under-represented, and figuring out why that is.”

Linklaters is currently in the midst of this process. The firm aims to collect data from across its Asia offices in an effort to identify pain points and areas for improvement. “We have a US/UK race action plan, but we’re really trying to figure out what increasing our diversity in Asia means,” says Wang. “That’s a very difficult thing to define. We don’t have an answer yet, but it’s something we are discussing openly. Just because you’re a minority doesn’t necessarily mean you are disenfranchised.”

Wang takes the example of white people in Hong Kong who represent a minority, but don’t face the persecution that other minorities do because of their race. The mainland Chinese community could also be considered a minority. Their higher financial status may protect them from disenfranchisement, but they could face discrimination because of underlying historical, political, racial or ethnic and socioeconomic tensions. “There are so many factors to consider, including religion, social mobility and skin colour,” says Wang. “The issues are really complex in Asia, so it’s important for us to understand what exactly we are working to remedy.”

Allen & Overy holds quarterly meetings across its Asia-Pacific offices to assess D&I opportunities while also considering the impact of covid-19 on employee well-being and inclusion. The firm recently extended paternity leave allowance to four months for employees in Singapore after findings from a staff survey showed concern with the low statutory requirement of two weeks. In Hong Kong and Singapore, the firm also offers paid leave for neonatal care, medical or adoption appointments, fertility treatment and recognition of bereavement leave.

“The firm’s global approach and commitment towards DE&I is ‘All-In’,” says Aney. “We want to create an environment where you are comfortable working with us regardless of your race, gender, sexual orientation, socioeconomic background or whether or not you went to a Russell group university, etc. If you are a talented lawyer, but you feel excluded because of your race or gender or accent or because of the fact that you went to a lesser known university, then we are not doing a good job of making you feel welcome and valued.”

Policy shifts

While law firms, local companies and multinationals across Asia are beginning to recruit dedicated D&I champions and create bespoke strategies to address imbalances and discrimination, many agree that much more needs to be done.

Mittal points out that D&I has two components – anti-discrimination and affirmative action. While many if not all international firms have strict anti-discrimination policies in place, Mittal says this is missing across many law firms and companies in India.

“You must create a policy and culture that first and foremost protects all employees, even if you work at a tiny organisation,” she says. “Once this has been implemented, then leaders can plan affirmative action to create a level playing field, especially for communities that have been historically marginalised.”

In 2019, Nishimura & Asahi established a Diversity Promotion Office with dedicated staff members and, in 2020, a D&I Promotion Council with nine members. Last November, it conducted training for all of its offices covering D&I issues, including unconscious bias. “It’s very important to us,” says partner Taeko Suzuki in Tokyo. “Many law firms in Japan understand the importance of D&I, but not many have put in place a strategy.”

While there is still a pressing need to advance opportunities for women in some Asian countries, experts say D&I initiatives in Asia must address other inequalities and forms of discrimination. Depending on geography, this could include those left behind as a result of disability, socioeconomic background, neurodiversity, sexuality, religion, caste, skin colour and more.

OUTSIDE THE BOXAsako Joba, head of Nishimura & Asahi’s Diversity Promotion Office in Tokyo, admits that gender equality tends to be the first priority in Japanese society because of Japan’s poor record on the visibility of women, compared to other Asian countries. “The inclusion of those with different cultural backgrounds and disabilities, along with sexual minorities, is vital to us, too,” she says. “We have 14 overseas offices and about 21% of our attorneys are lawyers admitted outside Japan. We are keen to ensure that issues beyond gender are not sidelined.”

Pushing for gender equality continues to be problematic because of entrenched beliefs about a woman’s place in Japanese society. “When we talk about promoting women so they can realise their potential, it can’t just happen overnight,” says Suzuki. “Society has taught women for so long that they have to be a certain way. Women’s voices must be heard and we need to have more women taking the law exams. We have to tackle that somehow. But for that to happen, society as a whole needs to change.”

In the past decade, Suzuki has noted requests for diversity audits from US and European clients who insist on having women form part of their external legal teams. In addition, she says, newspapers have reported on listed companies in Japan that still don’t have a single female director.

Similar demographics and gender challenges mean that diversity at Kim & Chang is also primarily focused on gender. The firm employs more than 370 women lawyers who make up over 27% of the total number of lawyers – the highest percentage among Korean law firms.

But Lee, at Kim & Chang, says that when making decisions on assignments and staffing high-profile projects, the firm considers “diverse gender, backgrounds, age and experience so that everyone is provided with an opportunity to participate in major cases”. This is in addition to ensuring that those chosen are best equipped to support the specific case and client, she says. “A diverse team brings about the best results for our clients, including crafting innovative solutions.”

The push for gender equality in the West, too, is by no means over, despite dedicated efforts. Last year, Linklaters elected its first female senior partner in its 183-year history, and Freshfields and Herbert Smith Freehills made headlines with similar firsts in appointing women lawyers to leadership positions.

Of course, both local and international firms are turning their attention to other forms of diversity such as disability, sexual diversity and social mobility.

Linklaters has taken steps in Hong Kong to make its office more accessible. With the help of a local NGO, SENsational, which provides customised D&I training and recruitment, the firm implemented changes while undergoing a renovation that would enhance the comfort of employees with disabilities.

Unfortunately, certain modifications could not be made because of factors beyond the firm’s control. Such situations indicate that, despite the goodwill and strong commitments, D&I policies can sometimes be derailed by political, legal or other factors.

“When we recruit these days, the younger generation asks very direct questions about where we stand on gender equality, promotion, maternity and paternity leave, etc.,” says Pallavi. “Firms have realised that D&I is an important aspect in recruiting, and the lack of it is detrimental to recruitment and retention. The younger generation genuinely cares about equality and inclusion, and we owe it to them to have a meaningful conversation on these topics.”

In some cases, the stumbling blocks may be external. Wang explains that while Linklaters takes pride in being a very LGBT+ friendly law firm, it cannot always be “loud and proud” about this externally because homosexuality is still criminalised in a number of Asian countries. “We can ensure people feel safe and comfortable internally, and we can make people feel included, but we can’t do external events as that could put people in harm’s way,” says Wang. “A lot of challenges to diversity work may actually be societal, legal or governmental – factors beyond our control.”

Progress and pinkwashing

Diversity is far from a linear journey and any success requires an investment of time, dedicated resources and top-down leadership. In some cases, diversity initiatives appear extremely sophisticated, with law firms developing catchy slogans and devoting entire posts to the cause. However, Mittal warns of the dangers of paying lip service, where D&I appears to be a priority in theory, but is completely absent in practice.

“Pinkwashing and pretending to be inclusive is dangerous and can create damage,” says Mittal. “Many law firms have made big statements, but that’s not enough.”

OUTSIDE THE BOXShe notes that although many law firms in India exhibited their logos in rainbow colours during pride month, signalling their allegiance with the LGBT+ community, most of them do not have actual initiatives for LGBT+ persons in place.

“Have they sensitised their workforce on how to be inclusive, and the nuances between LGB and T? Have they changed their language to make it inclusive? Does the organisation have proactive policies to ensure equal benefits are given? Nothing has been done,” she says. “Many people have told me one-to-one that they have not come out in their office because of a fear of harassment and lack of policies. And then they see their employer’s logo in the rainbow colours – it’s absolute pinkwashing.”

Law firms in India are still adopting a reactive approach to D&I, and may have some policies (for women at least) in place because they saw a business imperative, faced a loss of talent, or had to deal with a discrimination case, says Mittal. Many are simply aping their competitors – the rainbow logos being a case in point – without a clear intention and vision around implementing real and systemic change.

“It hasn’t trickled down to India in a big way because very few Indian companies are following their global counterparts in asking for diversity from their suppliers and service providers,” says Mittal.

Companies internationally are looking closely at supplier diversity to find ways of bringing marginalised communities into the supply chain, and creating opportunities for both their employees and service providers. “Companies have to drive the change,” says Mittal.


Diversity and inclusion in Indian law firms

The expression “unity in diversity” is often used to describe the plural society of India, a country that can take pride in being a melting pot of religions, castes, communities, tribes and languages, with an intrinsic sense of togetherness and integrity despite the presence of infinite diversity. However, mere cohabitation of a diverse population is not enough. What is required is cohabitation with equal opportunities.

To ensure the same, the Constitution of India under article 16 recognises the equality of opportunity in matters of public employment as a fundamental right, mandating that no citizen shall be discriminated against on the grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, in respect of any employment or office under the state.

The term “diversity” refers to the representation of different people in an organisation so that the workforce comprises a broad spectrum of people with demographic differences. Diversity and inclusion are not just public or state employment-oriented, but an important policy that must be adopted as a core principle of organisational ethics by private players and corporates across industries, including the legal industry.

A wide roster of people may not be able to uplift an organisation until and unless there is a sense of belonging. Therefore, “inclusion” must be practised; aimed at ensuring through conscious efforts that everyone, despite their differences, is valued and given equal opportunity to contribute to and influence the workings of an organisation.

IMPORTANCE OF POLICY

Aprajita Nigam, LexOrbis, Diversity and inclusion in Indian law firms
Aprajita Nigam
Managing Associate
LexOrbis in New Delhi
Tel: +91 995 303 0698
Email: aprajita@lexorbis.com

The first and foremost reason for introducing diversity and inclusion policy in law firms is the simplest of all. It is indeed the right thing to do that ensures wider public good. Society looks up to legal professionals while seeking “justice”, a principle that aims at ensuring equality, fairness and access to society. It is a matter of utmost honour to be associated with such a revered principle – and to sustain and maintain people’s confidence in justice, legal professionals should set examples of affording equal opportunities, along with hassle-free access to a full spectrum of diverse people without any discrimination.

Diversity and inclusion can add value to any law firm’s business and act as a driving force for the enhancement of quality, creativity, revenue, growth and profit. A diverse workforce of lawyers, paralegals and support staff can bring different viewpoints and perspectives to the table, leading to better-informed and wholesome decision making.

The amalgamation of diverse people from different backgrounds, having garnered a variety of life and professional experiences, can introduce a fresh approach to a given legal problem, enhancing the overall creativity of the firm. A team of diverse individuals can also synthesise better reactions to market changes. Moreover, the feeling of being valued and included will most likely result in higher employee engagement and retention rates along with improved performance.

INTERNAL DIVERSITY

Internal diversity refers to those differences that are by birth or situations to which a person belongs. These variations are not by choice and generally cannot be altered, such as age, ethnicity, race, descent, national origin, cultural identity, assigned sex, gender identity and physical and mental ability. None of these factors must ever be a ground for discrimination.

The recruitment and appraisal policies of law firms must provide adequate representation to the LGBT (lesbian, gay, bisexual, transgender) community at all levels including partnership – and concerted efforts must be made to create an environment in which they can thrive and are not made to feel like the “others”. Law firms should also foster an environment where people from different age groups and generations can work together in a comfortable and friendly manner.

As far as the present status of women in law in India is concerned, the gender and sex ratio may not be that skewed at entry level, but it is alarming in leadership roles. Although many women work at higher levels in many sectors, the judiciary, courtrooms and law firms tell a starkly different story. Bias related to appraisals, promotions, better opportunities and such prevents women from climbing the partnership ladder at law firms.

Discrimination increases two-fold in the case of pregnant women. While maternity leave helps women take care of infants without added professional responsibilities, it also acts like a double-edged sword. Absence from work for short or long stretches invites unspoken disapproval in the legal community and may result in a loss of networking and promotion opportunities. Law firms usually tend to avoid hiring female lawyers from a particular age group to avoid loss of working hours.

But that trend has been changing lately, and we see many law firms having more female lawyers than men. The legal industry will fully realise the actual potential of women if it adequately supports them through progressive and inclusive workplace policies. Avoiding odd working hours, introducing crèche facilities, having strict anti-harassment rules and increasing safety initiatives are some of the measures that companies and law firms can take to create a sex and gender-inclusive work environment.

EXTERNAL DIVERSITY

Manisha Singh, LexOrbis, Diversity and inclusion in Indian law firms
Manisha Singh
Founder Partner
LexOrbis in New Delhi
Tel: +91 981 116 1518
Email: manisha@lexorbis.com

External diversity refers to characteristics that are related to a person but are not by birth and can be influenced by surroundings. These factors can also change over time, such as religion, education, interests, skills, socio-economic status, relationship status, experiences, residence and geographical location, and citizenship.

Recruitment policies of law firms must be designed in a manner that lays down a path for diverse people to get access to jobs and opportunities. No one should be discriminated against based on religion or socio-economic status. In fact, the pandemic has taught us that work from home and hybrid models can work very well for law firms. Therefore, rejections or discrimination based on geographical location should be done away with. Personal relationships such as marriage, divorce or separation should never be grounds to deny or snatch away opportunities.

It is also important to touch upon a special kind of discrimination that we often see during the hiring process of legal professionals in India. Many law firms and even corporates looking for in-house counsel prefer candidates from certain elite institutions – and even list names of institutions in the formal job posting. This debars a large section of very capable candidates from applying for the job.

While alma mater may or may not matter, what really matters is the candidate’s calibre. Many of such elite institutions may not be accessible to a large number of aspiring law students due to high fee structure. Such hiring processes are therefore indirect discrimination on the basis of socio-economic status. While targeted absorption of talent at entry level is already happening through on-campus recruitment from certain institutions, the remaining number of positions and slots should be filled based on hiring open for all.

ORGANISATIONAL DIVERSITY

Organisational diversity refers to those factors that differentiate people at a workplace or organisation, such as designation or level of seniority, job profile, department, employment type and work location. Each member of the workforce is equally important, working towards wholesome growth of a law firm through diligent work as per their job profile.

While work quality expectation of seniors from their juniors is generally discussed, what is less talked about is expectations of inclusion and mentoring that junior associates may have from their seniors. The junior associates are the future of the firm and, once promoted, leadership and decision-making will be expected from them. But unfortunately, leadership and decision-making cannot be synthesised by mere promotion. Learning leadership and decision-making skills is a continuous process, and training pertaining to the same must start early. Therefore, it is imperative to include everyone in decision and strategy-making processes, so they are not taken off-guard when it is expected of them.

WORLDVIEW DIVERSITY

Worldview diversity refers to the differences found among perspectives and beliefs of people, such as morality, views on religion and atheism, political beliefs, outlook on life and epistemology. It is important for any firm or organisation to develop an environment where conflicting views and opinions are respected. The workplace must be inclusive enough to welcome and accommodate people with varied behaviours and attitudes that may range from extroverts, who are seen as enthusiastic and optimistic, to ambiverts and introverts who at times are commonly perceived as “quiet” or “anti-social”. A melange of personalities and working styles can help fill in the gaps, and encourage creativity and innovation.

LexOrbis logo

LexOrbis

709/710 Tolstoy House

15-17 Tolstoy Marg

New Delhi – 110 001

India

Mumbai | Bengaluru

 

Contact details
Tel: +91 11 2371 6565
Email: mail@lexorbis.com

www.lexorbis.com

Law.asia subscripton ad red 2022