I recently spoke at the Financial Services Lawyers Association (FSLA) as part of a panel on women and cultural change in financial services.
My talk was based on research I have been undertaking over the past two years into corporate and finance lawyers. Funded by the Government via the Economic and Social Research Council my project looks at the potential for lawyers in large firms to influence decision-making by their clients. This year I am writing up the results into a book entitled The Limits of Lawyers. It’ll make a great Christmas present in 2016.
I have interviewed more than 100 corporate/finance lawyers and compliance officers for legal practice from 30 top firms. The interviews cover a broad range of topics: how the profession has changed, lawyer-client relationships, how lawyers add value, regulation and so on. They also cover issues of legal ethics. At the FSLA I spoke about whether there is a gender divide in the ethics of lawyers. Before I come to my results, let me set the scene.
Female fund managers in the US outperform their male colleagues. A report by Barclays Wealth says women are thought to place more importance on financial discipline than men. Work by Grant Thornton on listed companies shows they perform better when they have females on their boards. This may be because women are less risk-averse than men, although other studies show that women who went to single-sex schools approach risk in the same way as men.
In the context of ethics the empirical data is more mixed. A number of studies show no gender difference generally between the ethics of men and women; while another, slightly larger, group of studies do generally show gender differences, with women being more ethical.
Some academics have questioned whether women are more prone to giving socially desirable responses to ethical questions than men – that is, more prone to giving an answer they think people want to hear.
In my interviews I asked: “How would you describe an ‘ethical lawyer’?” I did not ask my interviewees if they thought they were themselves ethical, as previous work has shown, perhaps unsurprisingly, that almost everyone says “yes”.
Some may say an ethical lawyer is one who follows the rules and does what the law says – the deontological approach. Others say an ethical lawyer does what is best for most people – the consequentialist approach. And some say it is one who does what a good person (a virtuous person who is honest, has integrity and courage) would do – the virtues approach.
It is fair to say that my interview question stumped a number of interviewees. Several asked: “So how would you describe an ‘ethical lawyer’?” and we had an amusing back and forth of “No, how would you…”. Others took a long pause before answering and many said later it was a question they had never considered before.
The vast majority of female interviewees gave answers that reflected the virtues approach:
“Someone who asks, ‘Is this the right thing to do?’…”
“…a lawyer who lets morals…views on human rights etc, their personal code affect what they do”
“Somebody who has integrity, honesty, thinks about others”.
A handful of female lawyers gave answers that reflected the deontological/rules approach such as “someone who follows SRA regulations”, but these were the outliers.
Responses from male lawyers were far more mixed across the approaches outlined above. Many gave answers that were grounded in the law:
“Someone who has respect for the law and the rule of law”
“Someone who acts in the best interests of their client within regulatory and legal frameworks”
“…compliance with standards set out by rules…”
Ethics is a complex subject, and contested. But there is some agreement that people who understand ethics in terms of virtue rather than rules have a greater ethical disposition than those who reason ethics purely in terms of rules.
As such, my research suggests that the female corporate/finance lawyers I spoke with have a more ethical disposition than the males.
The important question is – does this matter? And the short answer is – perhaps not.
Having a greater disposition towards being ethical is influenced by, and can be countered by, a variety of factors: our will to translate that disposition into action – ie. ‘doing’ moral rather than just ‘being’ moral; the environment in which we work – who our peers and bosses are; incentives; and so on.
So, if you’re a female lawyer reading this you might rightly look at your male office mate and think that you are more ethical than him, but it does not necessarily mean you will do anything about it.
Steven Vaughan is a senior lecturer at the Law School, University of Birmingham