The Law Society/ SRA – initial findings in a literature review report as to why BAME lawyers are over represented/ reported by the public to the SRA for misconduct/ complaints/ incompetence:
1) BAME individuals may be more likely to be reported because of socio-cognitive biases in those making complaints about potential misconduct. Socio-cognitive biases relate to how a person’s cultural or societal background may influence their conscious and unconscious perceptions or expectations of others.
2) 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.
Within these two high-level potential explanations, it is possible to identify the key themes:
Socio-cognitive biases
There may be a greater likelihood that Black, Asian and minority ethnic solicitors have complaints about potential misconduct raised with us about them due to potential socio-cognitive biases that influence decision-making by the complainant.
This is based on social attribution theory and its focus on how individuals use information to arrive at causal explanations for events.
There are two elements to this theory, which can influence the extent to which an individual apportions blame, which in this context may influence whether or not they make a complaint about someone. These are known as dispositional attribution and situational attribution.
Dispositional attribution considers the extent to which the perception of misconduct is assigned to an individual’s internal characteristics, or a ‘deliberate decision’ taken by them. Published research suggests this is more likely when a service provider is from a minority ethnic group. Dispositional attribution has been shown in consumer research to increase the likelihood of complaints being made. This may have the effect of amplifying the likelihood of complaints about potential misconduct made to the SRA about BAME solicitors.
Situational attribution considers the extent to which the perception of misconduct is due to situations or events outside an individual’s control, stressing the importance of external influences or situations ‘happening to’ the subject. Situational attribution has been shown to reduce the likelihood of complaints being made and has been shown to be less likely when a service provider is from a minority ethnic group. This may have the effect of reducing the likelihood of complaints about potential misconduct made to the SRA about White solicitors.
Individual level characteristics
The review shows that there are a range of individual-level characteristics which may be correlated to (rather than the cause of) complaints of potential misconduct, or impact the risk of misconduct itself, including some demographic, cognitive, and job-related characteristics. There is a paucity of research which analyses any potential relationship between these factors and ethnicity.
Organisational level characteristics
The review identified literature that may demonstrate a link between certain organisational characteristics and impact on the likelihood of complaints being made about potential misconduct, or the risk of misconduct itself. For example, organisational characteristics relating to size, complexity, status, and profitability – or its opposite, financial strain. These factors are likely to be outside of the control of the individual solicitor in question. There is a very limited body of research which analyses any potential relationship between some of these factors and ethnicity.
Case level characteristics
The review also showed the potential role of case-level factors in determining the impacting the likelihood of complaints being made about potential misconduct, or the risk of misconduct itself. Factors include ‘moral intensity’ (the extent to which the case involves ethical issues), ‘client capture’ (the power that a client may have over their representative), and the area of law involved. There is, however, a paucity of research which analyses any potential relationship between these factors and ethnicity. Further studies are required.
How did Racket Boy manage to manoeuvre through this maze of ignorance, subconscious ignorance and prejudice over forty years in the law? And come out fairly unscathed, with white clients still seeking him out! As he reflects, he breaks out in a cold sweat.
