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On the basis of sex?

- Perveen Hill

A few weeks ago, at a time when the global Covid-19 pandemic dominated every article, report and post, I noticed something that stood out; a junior barrister had tweeted about her dis-instruction based solely on her sex. Having been instructed by solicitors, she was dropped from five cases for a client, despite having never met him, as he did not want to be represented by a woman.

This prompted me to discuss the subject with my fellow Women in Criminal Law committee members and pose the question; is there any gender bias attributable to the instruction of barristers and other legal representatives? Furthermore, we asked why some in the profession followed these instructions to fuel such inequality and whether we were doing enough to stop it.

It is clear that no reputable firm or chambers should endorse or allow the allocation of cases based on sex. Aside from the obvious moral and ethical issues, it is unlawful for anyone (including solicitors, clerks or clients) to instruct legal representatives (or not) on the basis of any protected characteristic, including sex. It is of note that most corporate and commercial law firms, including mine, now provide regular training to staff and leaders on unconscious bias, recognising that it remains a big issue within the profession.

During my early career I was allocated, on merit, a complex, profitable case. I was thrilled to receive work of this nature and grateful for my firm’s faith in my ability. However, much like the tweeter’s experience, prior to meeting my client I was informed by the office manager that he did not want a woman to represent him. At this point, I was preparing to hand the case over to a male colleague. My supervisor took a different view.

I was introduced to the client and given a ringing endorsement. The client subsequently instructed me, and my sex was never raised by him as an issue again. Interestingly, my client confessed at a later stage that he felt a woman wouldn’t fight as hard for him as a man. If I were more cynical, I might consider that my supervisor’s sex influenced my client’s decision, since they perhaps trusted his recommendation, but I won’t dwell on that. I was fortunate to have a supervisor who supported and valued me at an early stage in my career, but doesn’t everyone deserve the same? It is clear from anecdotes on social media and private conversations I have had with female colleagues that they have not shared the same experiences and continue to face sexual discrimination.

So why does sex still influence the decision-making process when instructing a legal representative? The obvious answer is that we want to keep clients happy. Where a client requests a barrister or particular solicitor they should be given their preferred choice. It is commercially sensible for firms to ensure clients are content with their representation, particularly in a lucrative case where there is a pool of competitors. It is also often much easier to concede to a client’s request based on sex than to challenge it and face a difficult conversation that could easily be avoided.

As a profession, we pride ourselves on upholding integrity and promoting the rule of law. We must be prepared to challenge incidents of sexism whenever and wherever we come across them. If we select representatives on the basis of sex, we directly contribute to sexual discrimination and gender bias. Firms must offer training to staff so they understand the effects of gender bias, to avoid this behaviour and help to create a level playing field.

This has been a turbulent time for all in our profession, perhaps no more so than for junior practitioners who have felt most keenly the financial consequences of Covid-19. More than ever, they require our support. No practitioner should be dis-instructed, resulting in financial loss as well as a loss of access to experience, because they are a woman. We must ensure that sex no longer influences instructions and that a meritocratic selection process prevails.

Perveen Hill is a senior associate at BDB Pitmans, specialising in regulatory matters, white collar crime and investigations.

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