Bias among those who make complaints and the types of firms Black, Asian and minority ethnic (BAME) solicitors work for might explain why they are overrepresented in disciplinary activity, researchers have suggested.
The next stage of their work will be to test exactly which of these factors are causing the issue.
The literature review prepared by a consortium of academics at the universities of York, Cardiff and Lancaster is the first part of a project commissioned by the Solicitors Regulation Authority (SRA) to try and understand why those from BAME backgrounds are overrepresented in reports to, and resulting investigations by, the regulator.
Figures it published in 2020 showed that, while 18% of solicitors were from a BAME background, they were the subject of 26% of reports to the SRA, rising to 32% of cases it decided to investigate and then send to the Solicitors Disciplinary Tribunal.
This disproportionality was first identified in 2004, before the SRA existed, and most recently was addressed in a report commissioned from Professor Gus John in 2014. He found it was caused by broader socio-economic factors around access to the profession, and not discrimination by the regulator.
Other investigations have pointed to the fact that BAME lawyers are more likely to work in smaller law firms, which generate more regulatory activity, and certain areas of practice that have long been regulatory hot-spots, such as immigration.
Previous SRA-commissioned research in 2010 found that experience was a greater predictor of whether solicitors would face regulatory action than race, with those at both ends of their careers more likely to be in the SRA’s sights.
The literature review – which acknowledged that the vast majority was not focused on solicitors and did not specifically look at relationships with ethnicity – said this problem was not unique to the SRA.
Many other professional regulators, including the General Medical Council, National Police Chiefs Council and Nursing and Midwifery Council, have identified similar patterns.
The review highlighted two potential explanations. First, the “socio-cognitive biases” in those making the complaints. These relate to how a person’s cultural or societal background may influence their conscious and unconscious perceptions or expectations of others.
“This in turn may make some groups more likely to complain about certain other groups,” it explained.
Second, BAME individuals “may be more exposed to individual, organisational, and case-related factors that either increase the likelihood of complaints being made about potential misconduct, or impact the risk of misconduct itself”.
For example, BAME solicitors may be overrepresented in work areas or firm environments and circumstances “that by their very nature are more likely to generate complaints about potential misconduct”.
“These could be related to a wide range of factors which could be outside of the control of the individual solicitor in question, for example firm size, area of law or consumer demographics.”
Areas like criminal defence, domestic issues and injury “could increase the likelihood of complaints being made about potential misconduct, or impact the risk of misconduct itself”.
Despite the limitations of the literature, the researchers said it provided “a potential overarching framework for the next phases of the research”, which will be to test the influence of as many as possible of the different factors identified.
“This project will explore a number of these factors when data allows for sufficiently robust analysis. This requires both quantitative and qualitative methods, using both existing [SRA] datasets and original (primary) data collected as part of the project.”
It will also explore the experiences of solicitors and behaviors among legal service users.
SRA chief executive Paul Philip said: ‘The findings of this literature review confirms there is no simple explanation as to why Black, Asian and minority ethnic solicitors are overrepresented in the complaints that we receive.
“We want to know what structural and societal factors are driving this troubling and longstanding pattern. The next stages of the research will look into this further, so that we can better understand what’s happening and how these issues could be addressed.”
The SRA is also working with Exeter University to look at the factors influencing differences in outcomes by ethnicity in professional assessments like the Solicitors Qualifying Exam. A literature review for that was published earlier this month.
A final report on the research is expected to published in spring 2024.