September 2, 2018

Does the legal profession have cultural capability?

LAWTALK 921

New Zealand’s legal profession has a different ethnic composition to the wider population. At present 85% of lawyers are of European ethnicity, compared with 74% of our working age population. Change is coming, with Europeans comprising just 71% of those completing legal professionals in 2017 (“Lawyer ethnicity differs from New Zealand population”, LawTalk 920, August 2018, pages 70-75). Is the whole legal profession prepared for the practice of law in an increasingly diverse population? What about who will be entering the law?

In 20 years the ethnic makeup of the people living in New Zealand will have changed dramatically. Around 66% of people will have “European or Other” ethnicity, down from 75% in 2013. The Māori ethnic population is projected to increase from 16% in 2013 to 18% in 2038. The broad Pacific ethnic group is projected to increase from 8% to 10%, and the broad Asian ethnic group from 12% to 22%.

These projections are based on the 2013 census and we may find that the 2018 census shows we are even more diverse. We’re now “superdiverse”, says lawyer, academic and founder and chair of the Superdiversity Institute for Law, Policy and Business, Mai Chen. She says the academic literature defines the word to mean a country where 25% or more of the population was not born there and with 100 or more different ethnicities.

In the 2013 census New Zealand had 213 separate ethnicities and 25.2% of us were not born here. Auckland – with 44% of our lawyers and about 33% of our people – is even more diverse. Over 44% of Aucklanders were born outside New Zealand.

“Auckland is now the fourth most superdiverse city in the world, alongside New York, Singapore and Johannesburg,” Ms Chen says.

“In 2013 almost one in four Aucklanders identified with an Asian ethnic group. By 2023, 29.1% of Aucklanders will be Asian. And by 2038 one in three people in Auckland will be Asian. This is not just an Auckland phenomenon. The Canterbury region had the second largest net gain of migrants over the last decade. As at 2015 we know there was a huge increase in Filipino immigrants in particular assisting with the Canterbury rebuild. Two out of every three farm workers come from the Philippines or South America.”

Major changes by 2038

Ms Chen says that Statistics New Zealand projected in May 2017 that, by 2038, 51% of New Zealanders will identify as Asian, Māori and then Pasifika, alongside the 66% identifying as European. These figures don’t add to 100% due to the increased rate of intermarriage and people of mixed ethnicities.

Mai Chen
Mai Chen; lawyer, academic and founder
and chair of the Superdiversity Institute for
Law, Policy and Business

“In superdiverse Auckland and New Zealand, people don’t need to go on their OE to meet someone of a different ethnicity; they can stay at home and do that. Most hands in the room go up when I am speaking on superdiversity, if I ask who has family members of different ethnicities.

“The result is that lawyers need to have not just IQ and EQ; they have got to build their cultural capability of CQ, which is the ability to deal with people who are not like them,” Mai Chen says. This will become increasingly relevant to deal with clients and also superdiverse staff.

She points to the 2013 census figure of 90,000 New Zealanders who said they did not speak English well enough to have a basic conversation.

“That’s pretty serious because if you’ve got clients who can’t speak English, you can’t advise them unless you can speak their home language. Getting an interpreter raises a whole pile of issues. You have to find one proficient enough to interpret your legal advice accurately and if you don’t speak that foreign language, how do you know if they have got it right? Even in court, I have had an interpreter who did not interpret what my client said on the witness stand. I had to intervene as it was in Mandarin and I could understand the translation – or lack of it.”

Discrimination

Ms Chen says she has spoken to second and third generation lawyers of non-European ethnicity who are discriminated against when it comes to recruitment by law firms.

“They tell me that because they have an unpronounceable foreign-sounding name and look visually diverse, law firms presume they can’t speak English and they don’t even get an interview. I hired an excellent senior associate who had this very experience. But of course this behaviour shows a lack of cultural capability. They were born in this country. They are kiwis. And yes, they were raised in households with parents who were not born here, but they do understand New Zealand culture and speak and write the English language as well as any Kiwi. I have seen the research evidencing that job applications by candidates with a foreign-sounding name are 88% less likely to get an interview.”

Mai Chen is, of course, a powerful example of success. She arrived in New Zealand from Taiwan not speaking any English. She was first equal in her law school class, won a scholarship to Harvard, and won a prize at Harvard for the best human rights thesis. She has become one of the most successful and influential members of the New Zealand legal profession.

Building cultural capabilities

In our demographically transformed society, lawyers must build their cultural capabilities to succeed. Ms Chen gives an example: “I get calls from other lawyers saying: ‘An Asian client called me, Mai.’ Asia has about 4.5 billion people in 48 countries, so usually I say: ‘Which country in Asia do they come from?’ They reply: ‘Gee, I don’t know’. I then ask, ‘Were they born in New Zealand or have they migrated here?’ They reply ‘I don’t know’. I ask ‘Are they second or third generation?’ They reply ‘Don’t know’.”

“If I’m told the client is Chinese, I then ask ‘Where were they from?’ You can be a Chinese person from China or Taiwan, Singapore, Malaysia, the United States. It matters where people come from as it affects their language abilities, their culture and most importantly their understanding (or not) of the Rule of Law.”

Cultural capability means dealing with people who are not like you, and recognising and understanding differences that arise from national culture.

“Finding a junior Chinese lawyer who can just be the interpreter is not going to be enough to properly advise Chinese clients from Mainland China, for example. You will need senior Chinese practitioners if you want the Chinese clients to respect the legal advice. It is important to reflect your customer base and to ensure that you’ve got the whole talent pool at your firm. I’m not talking about quotas.

“It’s profoundly important for all members of the profession to be building their cultural capability, to be able to advise people not like them and to deal with superdiverse staff. Being a good lawyer requires you to be a good psychologist. It’s pretty hard to get into the skin or the shoes of the person you are advising if you can’t understand their culture or where they come from.”

Mai Chen has this parting advice for all lawyers: “If you don’t get cultural capability, then all that will happen is that ethnic lawyers will service and advise their own people. It is already starting to happen now, and it matters as the number of ethnically diverse clients in New Zealand grows.”

Educational preparation

What about the people who are getting ready to enter the legal profession and to spend the next 40 years or more practising law in an increasingly diverse world? Are they getting a good grounding in what will be needed in our superdiverse country?

Each of New Zealand’s law schools was asked what programmes they have to attract, encourage or assist students of different ethnicities. They were also asked if they provided any training or information to their students on diversity and working with lawyers and/or clients of different ethnicities.

Four of the six responded within the time requested. Their answers showed that all are aware of the needs and cultural differences of their students. In some, particularly the University of Waikato, there is a very strong commitment to providing bicultural support and teaching.

It was interesting that while there is an awareness of the rapidly growing number of law students of Asian ethnicity (now 24% of law students), there appear to be few measures in place specifically to assist them or to prepare students for working with Asian clients.

Canterbury Law Dean Ursula Cheer says the Canterbury law school does not have a specific strategy to attract or retain Asian students.

“However, we are following their progress through our longitudinal study of law students which began in 2014 and involves Canterbury, Auckland, Waikato and now Victoria law schools. This group appears to be equal in numbers to Māori and Pacific student numbers combined. It is a silent group which rarely seeks help and does not appear to organise through student associations, but this may not be surprising as it is in itself a diverse group. The main difficulty for such students is coping with the requirement for excellent written and oral English skills.”

University of Otago

In its recruitment focus, the Faculty of Law says it works hard to ensure it covers smaller centres with larger Māori populations, including Rotorua, Gisborne, Tauranga, Whangarei and the Far North.

Jessica Palmer
Jessica Palmer, Law Dean
at the University of Otago

Law Dean Jessica Palmer says the Faculty of Law provides additional tutoring for Māori and Pacific students and works closely with both the Māori and Pacific student support centres on campus who, she says, themselves provide an excellent support structure.

Two student associations – the Pacific Island Students’ Association and Te Roopū Whai Pūtake – run events and programmes to support students, with support from the faculty. Events include guest lectures, mentoring breakfasts, peer study sessions and noho marae.

“We also send students to national Pacific and Māori law conferences where they can network with practising lawyers and develop a wider support structure,” Professor Palmer says.

“While there is not currently specific training on working with people of different ethnicities, many of the clinical legal skills our programmes develop – such as client interviewing, negotiations – and many of our papers are teaching students to be mindful of their clients’ needs and contexts.”

She says the faculty also has a large number of students who volunteer at the Dunedin Community Law Centre, where they receive practical training on working with clients.

University of Canterbury

Canterbury has a specific bi-cultural strategy, says Law Dean Ursula Cheer. It requires the graduation of students who are bi-culturally confident and competent. That means that every degree has six kaupapa embedded in it. Professor Cheer says the Law School is in the process of embedding these kaupapa at all levels of the LLB, BCJ and at post-graduate level.

Ursula Cheer
Ursula Cheer, Law Dean
at the University of Canterbury

“Māori students know that this learning environment reflects the partnership between Māori and Pākehā established under the Treaty of Waitangi. The learning environment at Canterbury is bi-cultural, with dual signage throughout the campus,” she says. “Staff are able to take Te Reo courses and other courses dealing with Māori culture.”

Māori and Pacific students are recognised at Canterbury as members of a vulnerable group of learners who have more difficulty in tertiary education, for diverse reasons, Professor Cheer says.

“Students in these groups are often first in their families to enter tertiary education and many have strong family obligations which can make study difficult. For both groups we have a specific member of staff who follows the progress of students in their first and second year law and in the BCJ and encourages them to persist in their studies, and refers them to targeted support from our Māori and Pacific support teams.”

The law school has a Māori quota which provides 10 places by which Māori students can be admitted to second year law without meeting the usual requirements. Special Pacific tutorials are run to assist students in this group to cohort strongly.

The law school also supports the Māori Law Students’ Society (Te Pūtairiki) and the Pasifika Law Students’ Society financially and in other ways.

As well as the initiatives in place, Professor Cheer says the law school is developing a final year course which will include skills such as business mihi and other cultural skills required for legal practice and other work places.

Victoria University of Wellington

Pro Vice-Chancellor and Dean of Law Mark Hickford says the Faculty of Law is committed to supporting participation and achievement of students of all ethnicities.

Mark Hickford
Mark Hickford, Dean of Law
at Victoria University of Wellington

“The legal profession in New Zealand should have the opportunity to employ talented and qualified staff representing the diversity in our society,” he says.

“The university has a particular focus on increasing Māori and Pacific student achievement, such as the programmes and initiatives in place to find our ‘missing one thousand’ – the thousand additional Māori students that the university is seeking to enrol.”

The Faculty of Law holds information evenings for the families of Māori and Pacific school-leavers, and visits schools with high Māori and Pacific demographics to discuss enrolment in law and what the law degree entails.

Up to 10% of available places at 200-level law are reserved for Māori students applying under the Māori Admissions Process. Applicants under this are required to have passed all prerequisite courses and are interviewed by a panel made up of members of the Māori community, the Law Faculty, and Māori legal practitioners.

As with the other universities, the Victoria Law Faculty says it supports student organisations, including the VUW Law Students’ Society which represents all law students, and related groups such as Ngā Rangahautira (the Māori Law Students’ Association) and the VUW Pacific Island Law Students’ Society.

The Faculty employs a Māori Law Students’ Coordinator and a Pasifika Law Students’ Coordinator, who monitor their respective student cohorts, organise the Māori/Pacific Tutorial Programme and revision sessions before tests and exams, and contribute to pastoral care.

The Faculty says training on diversity and working with different ethnicities is covered in its LAWS 334 Ethics and the Law course, which is compulsory for students wishing to qualify for admission to the bar. The course includes the development of transcultural ethics, especially in relation to Māori, and the Faculty says it has also been trialling unconscious bias sessions as part of the course.

University of Waikato

Te Piringa – Faculty of Law says its student cohort is made up of approximately 30% Māori students and 17% Pacific students and it works hard to meet their needs both in providing relevant academic context and support services.

Te Piringa (“the coming together of people”) is built on the three core principles of professionalism, bi-culturalism and the study of law in context. From its beginnings in 1990 the faculty has had a very close connection with the manawhenua of the Waikato-Tainui and the Kāhui Ariki.

There is no admissions quota system and Te Piringa says Māori law students have obtained a place through their academic preparedness for the LLB programme. “Nevertheless, that programme is a demanding one for Māori and Pākehā students alike. A number of formal and informal support systems are in place to assist Māori students.”

Māori perspectives, concepts and traditions form an integral part of several of the compulsory papers, particularly Legal Systems, Law and Societies and Jurisprudence, and are acknowledged in several others. Te Piringa also offers papers which focus on Māori law and issues or on comparative indigenous experiences with the law. These are offered at undergraduate and postgraduate levels.

A first year course offers a stream or tutorial intended for Māori students who feel more comfortable in a predominately Māori learning environment. The faculty has full-time Māori academic and administrative staff and support of Rahui Papa, the faculty’s Pou Tikanga. Each Māori student is assigned to a Māori member of the academic staff to act as adviser of studies.

Te Piringa has a dedicated Pacific Island student mentor, to provide support to this student cohort. It also offered a special paper, Pacific Peoples and the Law, in its summer semester and says this was extremely popular.

The Waikato Māori Law Students’ Association – Te Whakahiapo and the Pacific Law Students’ Association are also active on campus. Both provide strong support networks for students and are supported by the faculty, local lawyers and the judiciary.

“The student organisations are self-managed, dedicated and driven. As faculty it is fair to say we see our future leaders in these organisations. It provides them with a forum or vehicle by which to hone their leadership skills and abilities. As a faculty we both encourage and foster this,” Te Piringa says.

This year Te Whakahiapo introduced a Māori negotiation competition and the finals were held on 10 August. The first of its kind in New Zealand, the competition was student-led and student-driven. Other universities will be encouraged to adopt the competition model for a national Māori mooting competition in 2019, with national finals at the Te Hunga Roia conference.

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