Sommerlad, H --- "What are you doing here? You should be working in a hair salon or something'': outsider status and professional socialisation in the solicitors' profession" [2009] LegEdDig 10; (2009) 17(1) Legal Education Digest 33

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‘What are you doing here? You should be working in a hair salon or something’: outsider status and professional socialization in the solicitors’ profession.

H Sommerlad

2 Web J Current Legal Issues, 2008, pp 1–21.

Despite the existence of definitional difficulties with the concept of profession, there is substantial agreement about its core characteristics: namely, a grounding in an articulation of cognitive and normative dimensions, producing both the ability to control a market and achieve social status and its exclusive, community character which is justified as producing a natural adherence to common ethical standards.

As one of the ‘classical’ professions, the solicitors’ profession in England and Wales conforms to this paradigm: whilst its social justice ideology entails a discourse of equal accessibility and a role enactment based on demographic neutrality — termed ‘bleached-out’ professionalism — traditionally it has been characterised by a white male middle class culture, practised social closure and exercised strong pressure on its members to conform to professional norms, values and rituals. This remains the case despite the exponential increase in women solicitors: women have made up over 50 per cent of new entrants for over 10 years, producing an 850 per cent overall increase in the last 25 years. Yet their participation has failed to feminise either professional structures or culture, in part because it coincided with a general expansion of the profession, in part because the majority of these women emanated from the same socio-economic and ethnic groups as their male colleagues, and in part because child care remains highly gendered, with the result that many female solicitors have broken career trajectories. Instead, the coincidence of mass female entry with a general expansion of the profession facilitated the redesign and stratification of professional work, concentrating ownership and governance in fewer hands. The resulting disjuncture between the legal profession’s discourse of meritocracy and accessibility, its increasingly varied membership and its persistently male white middle class culture has recently been accentuated by the expansion of Higher Education (HE) and the resulting increase in law students drawn from other minority groups. Yet the deeply stratified nature of UK HE institutions and the status nature of the professional project have meant that these developments have neither eradicated class nor produced equality of opportunity.

The professional project entails control over training and qualification in order to ensure that it comprises sufficient indeterminacy to facilitate exclusion and produce professional solidarity. Whilst this control has reduced as a result of graduate entry, it remains evident in the predominance of black letter law, the requirement for a core of qualifying subjects and the minimal input of socio-legal studies into the law curriculum. The extensive research into diversity and education shows that the successful embedding of widening participation is associated with its full integration into an institution’s strategic goals; the maintenance of a focus on widening participation throughout the student life-cycle; the development of institutional structures and processes which value diversity, and an approach to the curriculum, learning and teaching which reflects diversity. This approach is supported by evidence that the design of law curriculum should be approached with ‘an appreciation of the ethnic dimension to learning’. In practice, however, overt closure strategies continue to operate in law schools; for instance, McGlynn writes: ‘Gender informs many aspects of the law school, from admissions policies, to mooting, to the inclusion of gender perspectives in the ... curriculum ... to the inculcation of the values, ethics and principles of the law and legal profession and to the recruitment, retention and promotion of women academics’. Thus law curricula generally continue to embody the classed, raced and gendered nature of the legal profession, and few law schools have taken on board the stricture that to embed widening participation they must ‘know (their) students ... their interests, demographic background, motivation for undertaking the subject, level of knowledge, and previous learning experiences’. Rather, the connections between professional status and determination of what constitutes legal knowledge have resulted in conservative pedagogies which accentuate the mystifying nature of legal doctrinalism: thereby compensating for the explicitly vocational dimension of the law degree.

Beyond the academy, private practice controls first entry into the profession through its control over training contracts, and then workplace training. Research indicates that whilst many law firms have endorsed the need to increase the diversity of their members, their entry requirements not only generally discriminate against graduates from new universities, but also exceed simple degree and / or professional qualifications and extend to a range of attributes and practices many of which are tacit and involve insider knowledge. These attributes are likely to be so instinctive and intrinsic to professional and organisational narratives, that employers themselves may not be aware of them. New university students therefore tend to suffer significant disadvantage in the legal labour market, and encounter difficulties in obtaining the training contracts which are necessary to qualify as solicitors.

Theoretical and empirical work on professional socialisation supports the description of professions as ‘crucibles of identity formation’, so that even where firms’ intake does become more diverse, this diversity is effectively erased.

For instance, Goriely and Williams suggest the persistence, despite the implementation of anti-discriminatory measures, of the traditional approach to evaluating newly qualified solicitors, which relies more on measuring them against characteristics of the suitable ‘chap’ than on a rational standardised approach to evaluation and appraisal.

Nevertheless, growing awareness of the need for a representative legal profession and of the persistence of discrimination has produced pressure for reform at both the governmental and professional association level. A concern with equity was one of the motivating factors behind the Training Framework Review (TFR) which proposed more diverse and less costly routes to qualification based on the assessment of outcomes, thereby challenging the traditional career trajectory. Boon et al have commented on the ambivalent nature of these proposals: on the one hand, they may be seen as part of the move towards a post Fordist system of education in that their key features comprise a neo-liberal individualisation or ‘flexibilisation’ of learning and positioning of legal knowledge as a product of the market place. On the other hand, they are also progressive not only in their embrace of diversity and accessibility but also their emphasis on vocationalism rather than doctrinalism.

However the vitality of the professional status project has ensured that the professional elites (both the elite law schools and firms) have been able to resist these proposals, stalling their implementation.

This paper reflects on the issues raised above through discussion of the findings of an ongoing longitudinal study of students and trainee solicitors. I consider the encounter between aspirant lawyers from minority groups and the solicitors’ profession, and I pay particular attention to the processes of professional socialisation those who gain entry are obliged to undergo.

The research project (which was piloted 2003-4) was begun in September 2004 and is a longitudinal study of two cohorts of part-time and full-time post-graduate students undergoing the academic stage of their vocational training (the Legal Practice Course (LPC)) at a ‘new’ university in a large provincial city. Cohort 1 comprised part-time students 2004-6 and full-time students 2004-5; cohort 2 part-time students 2005-7 and full-time students 2005-6. The number of students in each cohort varied slightly in each year of the study: 2004-5 30 were part-time, 57 full-time; 2005-6 33 part-time, 63 full-time). The research with the students is designed to track developments in career aspirations, perceptions of the legal professional field, levels of attainment during and after the vocational training stage and into qualification and experience of professional socialisation.

A mixture of methods was deployed: two questionnaires were administered to the student cohorts (both full and part-time) at different stages in the LPC, the first during their first week and the second towards the end of their course (therefore the administration of questionnaire two to the part-time students in a cohort took place a year after its administration to the full-timers). The questionnaires were designed to capture basic socio-demographic details; understandings of the profession; motivations and aspirations; the development of motivation, aspiration; and success in obtaining training contracts. The data from the questionnaires was quality checked and, where appropriate, coded before being input into SPSS for analysis.

The first questionnaire was followed by focus groups which were held about a third of the way through the full-time year (a year later for the part-timers in the cohort). Around one third of the student body participated in four groups of between four and nine students, which were selected to comprise various combinations: for instance, one group was all female, one all male; one all non-white; one mixed both in terms of gender and ethnicity. Each group was led by a different member of the research team. Amongst other topics, the groups explored views on law as a discipline and on ideal jobs and drew timelines charting and exploring their first awareness of a desire to do law through to where they saw themselves in five, ten and 15 years. In order to elicit internalised, and possibly tacit understandings of the profession, responses to questions were explored both in open discussion, and also by asking respondents to write descriptions and to draw what came into their minds when, for instance, they thought of solicitors. The sessions lasted around two and a half hours.

This focus group work was followed by semi-structured interviews with students, largely drawn from the full-time cohort but including some part-timers. Interviews are now being conducted with selected members of the cohorts at staged interval during their training contract and through into their first two years post qualification, again at regular intervals. The project is also tracking selected respondents who have not yet obtained a training contract.

Another sample comprised representatives of the local legal employment market. The research methodology adopted with these employers is similar to that deployed with the students. At the time of writing, a questionnaire, which includes many questions which correspond to those asked of students, had been administered to 50 per cent of local law firms, and this is being followed by focus groups and interviews. To date, around 25 questionnaires have been returned and reminders are being sent out, and five employers have been interviewed.

The gender balance of the research sample corresponded to the national law student average (55 per cent female). However 41 per cent of students were drawn from Black and Ethnic Minority groups (BME) compared to a national figure for all BME students in 2004 of 23.9 per cent. The other striking differential was the high proportion (45 per cent) of students who could be categorised as working class. On the one hand class has been described, along with other social categories, as obsolete, a ‘zombie category’. Yet the related proposition that we are seeing an increase in transformative agency is undermined by the decrease in social mobility in the UK. Instead, following Savage, we might view class as increasingly related to cultural practice, and it may be argued that the entire system of informal barriers and benchmarks erected by the profession turn on the resilience of the concept of class, as revealed in educational institution attended and, of course, other signifiers such as dress and speech. This is supported by the widespread failure of the elite HEIs to recruit ‘non-traditional’ students who are instead concentrated in the new universities, a pattern which both fits with and accentuates the lower status of new universities and their (related) greater emphasis on vocationalism and innovative pedagogical practice.

In order to establish the class background of the sample, we therefore deployed a mixture of indices including post code, parental occupation, students’ self categorisation, school attended, patterns of familial attendance at university, and the university where the students had studied for their first degree: for only a quarter of the student body was it common for their family to have attended university; for half, either they or their siblings were first generation students, and these results corresponded with attendance at state schools; and 55 per cent had studied for their first degree at a new university (most at the university under study).

The enactment of socio-economic background in cultural practices was manifest in other ways which would make it difficult for outsider students to ‘pass’ as potential lawyers. For instance, the dress codes of some female students distinguished them from their middle class colleagues, resulting in an aesthetic which could be coded as ‘common’. One student said of an interview at a law firm: ‘they sort of looked at me as if ‘what are you doing here? You should be working in a hair salon or something’, and a mature student who had had a previous career as an accountant made the following observations on her colleagues: ‘I can envisage some of them as being lawyers, but others I look at them and think, ‘what are you doing here?’ ... their whole demeanour ... some of them look very dolly birdy ... the ones that you can tell will get a training contract ... the women are young, attractive, thin, blonde ... flirty, but dressed very subtly ... they are aware and confident’. On the other hand, the Islamic students’ dress highlighted the additional problems they would face seeking to enter a profession which reflected ‘the particular biographies, beliefs and expectations of ... white(s) ...’.

Speech of course remains one of the most powerful signifiers of class. A primary function of legal training is to achieve enculturation in the profession’s official language; in addition to specific legal terms and the frequent use of Latin, this includes the use of the passive voice and modal markers to signify detachment, which working class students tended to find alien. Many such students had also become conscious of the need to acquire a vocabulary, intonation and accent which would ‘bear(s) the imprint of a professional attitude’ and spoke of the disadvantage they perceived as flowing from their regional accents.

Thus, although students’ reflections on law as a discipline revealed the extent to which they had internalised law’s cultural paradigm and discourse, and, moreover, were aware of and took pleasure in the cultural capital this gave them, this socialisation could not compensate for the differential between these outsiders and the professional template, and, perhaps most significantly, their ignorance of the profession. Whereas many law students in old universities come from legal dynasties, and therefore not only possess a network of contacts and cultural capital, but also that intuitive understanding of what the profession requires, the knowledge of many outsiders was originally grounded in films and television programmes like Ally McBeal and LA Law.

The reasons for the difficulties in obtaining contracts varied according to professional sector. As observed above, the employment practices in the large corporate sector generally reveal a significant bias against new university students.

Yet there is little evidence that the corporate sector’s preference is economically rational, and has been described as ‘misguided’: for instance QAA reviews have consistently indicated broad parity between HEIs in terms of teaching quality. In fact, anecdotal evidence suggests that there may be an inverse relationship between the status of a university and the importance attached to teaching. In fact the claimed correlation between the quality of a law degree and the prestige of the conferring institution may be described as ideological rather than based in evaluative, comparative research. The attributes cited as necessary to be a good lawyer always include ‘people skills’, good communication, time management, and (by corporate firms) entrepreneurialism. Yet it appears that large firms’ criteria is for choosing trainees is grounded in the prestige of their university and other status indicators, and extends to the applicant’s age (around 26); other life experiences which point to the possession of the above attributes tend to be discounted.

This preference for universities ‘marked’ with class status is more than explicable if we see education as a positional good, and acknowledge the dominance of the middle class over professional education and training. It then follows that one of the primary functions of assessment and qualification is to advantage those existing class groups who have best access to prestigious institutions and professions. The resulting investment which the middle class have in ‘traditional’ qualifications exists in tension with the modernising bent of educational policy: Human Capital theories which argue that the rational operation of labour markets precludes structural barriers to participation on the basis of characteristics like class, gender and race; and the accompanying neo-liberal discourses of competencies, arguing for modes of training of demonstrable value to work performance. These trends have been identified as having produced the utilitarian turn in HE, with its emphasis on Personal Development Profiles (PDPs) and the need to produce workers unencumbered by tradition. As we have argued above, because both HE and the professions remain sites of class and gender privilege, these processes are being resisted, especially by Russell Group universities. Similarly with law, there is a tension between the imperative to meet the different needs of a fragmenting professionalism and fragmenting society through production of different kinds of lawyers, and the interests of the profession in maintaining the obscure link between legal knowledge and practice.

The decline in the small firm / High Street sector of the profession extends to their intake of trainees: nationally, sole practices and firms with up to ten partners take 37 per cent of trainees registered with private practice. Furthermore as a result of the partial persistence of quasi-kinship structures in this sector, contacts remain a primary means of obtaining a contract with the result that ethnicity and gender are far more determinant of students’ chances of success. This has led to the development of niches in the market, where small high street firms or sole practices run by minority solicitors can provide a refuge for those who would have difficulty finding places with larger firms.

This latter strategy recognises the importance of social capital, and an alternative approach is to seek to build and exploit ‘bridging’ social capital with ‘insiders’.

However, the process of accumulating bridging social capital is not accessible to all outsiders. An alternative strategy is to accumulate workplace skills and competencies in a lower status niche, and then to ‘sell’ those skills to a more advantageously placed firm.

The ‘incomplete and idiosyncratic foundation’ offered by legal education intensifies the professional socialisation process which trainees undergo during their training contracts. As experiential learning, in which practices (both technical and cultural) are modelled by the master, it serves to break trainees down and re-make them in the image of the firm. The formal training in legal skills is designed to inculcate those dispositions which embody the culture of an organisation, and although full professionalism will ultimately be exemplified by certitude, initially the effect on the trainee tends to be loss of confidence.

Thus trainees must learn how to display, effortlessly and therefore convincingly, a professional demeanour, which, as the comments by a middle class white man, training in an expanding commercial firm, make clear, is rigidly bounded:‘(it’s) conformist ... people believe they have to act in a certain way to be looked at as lawyers ...’.

Instead, I want to suggest using the key findings of research about both the barriers facing non-traditional students, and the strategies used by those who achieve ‘success,’ to enhance the education and training process at the undergraduate stage in a way that will both reduce the opacity of the way in which entry to the labour market works, open employing organisations to more public scrutiny and thereby reduce the information asymmetry which market theorists would see as one of the key dysfunctions of the current state of affairs.

This could be achieved by incorporating learning elements within HEI’s equality and diversity strategies in order to enhance the employability of all students, but particularly those from minority backgrounds, and to raise the profile of ‘outsider’ students with the profession and sensitise it to diversity issues. This might be accomplished by embedding within degree or professional qualifications a pedagogical instrument which combines research, similar to that reported here, into the student body (in order to acquire the necessary in-depth knowledge of their demographic background, their motivations and aspirations), tutor led work to improve students’ critical understanding of the legal profession, together with exercises also designed to engage law students in critical reflection about the legal profession. This last dimension could comprise student research into the profession’s structure and culture, including an analysis of skills and other attributes it requires; student link or mini-placement with a firm, and the development of a personal career strategy including practical steps to meet not only those employer needs which are explicitly stated, but also some of the implicit unstated expectations. This pedagogical instrument could take the form of either a dedicated professional employability module or modifications to existing PDP activities, or elements of these embedded across the law degree, and would thus combine the research methods described above with tutor led input and student research exercises.

The current focus on equality and diversity and widening participation, which is shared by HEIs, government and the professions, makes this a crucial moment to interrogate what is entailed in transforming both HE and the professions into genuinely diverse and open institutions. I have sought in this paper to contribute to the debate over how we can realise the potential for encouraging diversity, not just in the sense of widening entry, but also in the sense of rendering the profession as a space more open to the contributions of different kinds of lawyers (and see the arguments of Erica Rackley in a similar vein in relation to the judiciary) by using opportunities for curriculum innovation to create a bridge between the profession and non-traditional aspirant lawyers.