Legal: Barred: the best person for the job

Asian barristers often don't get work because solicitors - even Asian ones - pander to the prejudice of their clients. Romasa Butt recounts her own story of fighting against racism
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Indy Lifestyle Online
STUDIES in America have shown that Asian children often do better at school because they come from a culture which believes that you have to work hard to be successful. That ethos has recently been satirised by such television programmes as Goodness Gracious Me, co-written by Meera Syal, who was made an MBE in the New Year's Honours list. Fans of the programme will recall various sketches depicting Asian "over-achievers". Some of them are even going to Oxford at the age of nine! So we are told that there are a disproportionate number of Asians running around with trunks full of degrees and professional qualifications. One may ask where they all are when we look at who occupies the top positions in society.

Let's wind the clock back to graduation with hordes of fresh-faced Asian graduates armed with their degrees. What do we do now, says one idealistic and naive over-achiever? Cash in on them, says another over-achiever. So they go off in search of the best jobs. One of them ends up at the Bar and thinks, right, now the world is my oyster - we've all heard that barristers earn a sackful of money.

Fast forward to 10 years later. Female over-achiever arrives at chambers and is told by her clerk that he has just received a call from a solicitor who wants to instruct counsel for a complicated fraud trial at the Old Bailey. Faithful clerk says he thinks Asian female over-achiever is the ideal choice based on her knowledge, experience and proven track record. Faithful clerk phones solicitor and puts forward ideal choice and recounts her success rate etc. Solicitor is impressed and asks for name of counsel and realises that faithful clerk is recommending a female who does not brandish a pukka English name. Solicitor says that she will not do as the client has given her strict instructions that he wants a male brandishing a pukka English name.

Although the client reserves the inalienable right to choose counsel it cannot be based on any stipulation which is contrary to the law, ie on grounds of sex, creed or colour. Faithful clerk asks solicitor the reasons for the stipulation by the client. He is told that the client is of the view that the case is far too serious and weighty a matter for a female and that he stands a better chance of being acquitted if the person representing him is "white". So, Asian female over-achiever is dumped in favour of a male, brandishing a pukka English name with less experience.

Anyone who has done jury service will tell you that the client's fears are completely unfounded and that the whole supposition is claptrap. The fact that counsel must wear a wig and gown in court ensures that you are, as counsel, sexless and colourless.

So what does she do? She has a number of options. She can forget it and accept the fact that she has been defeated by good old-fashioned ignorance as there will always be people like that and hope that not everyone is like that, or she can do something positive about it: she could get her clerk to call the solicitor and remind him/her that it is their duty not to pander to such requests as it is clearly contrary to the law.

In the case of a weak solicitor this will probably result in the client going to another firm who will pander to his request. In any event the weak solicitor will have money reasons for wanting to pander to the client's request. A better solution for all concerned is to take the bull by the horns. This has been proven to work. The faithful clerk arranges a conference with the ideal counsel, in this case the Asian female, when the client's fears will be allayed and he/she will realise how futile his/her ill-conceived preconceptions are.

In a society which is driven by competition so that only the fittest survive, there has to be a presumption that all are competing on a level playing field. To the author's mind, although the above scenario is a real one, it is impossible to take part in the race if your arms are tied behind your back and your legs tied together. It's a bit like spending years training for the Olympics only to find that when you are at the starting line for the 100 metres hurdles you can't jump over the first hurdle because your arms and legs are tied together.

The reason why this particular scenario is of interest is because the solicitor and client concerned are Asian! This new glass ceiling bas been put there by Asians who don't want to be represented by fellow Asians because of preconceptions of ability based on sex and colour. This is not always true in all areas of the law but is felt increasingly as the cases become more challenging, with greater sums of money involved and invariably they are of greater complexity. These areas are traditionally the bastions of the male species.

Sadly this is not the first time that the author has encountered this. Less than 12 months earlier she was representing two defendants charged with a serious offence. One was Caucasian and the other Asian. The Caucasian wanted to be represented by a male and the Asian by a Caucasian. Physically, counsel represented the most undesirable package; female and non-Caucasian.

Fortunately, the solicitor did his job and stuck to his guns and a conference was arranged with counsel on the basis that I was the appropriate person for the case. The Caucasian client saw sense and I represented him but the Asian client still preferred to be represented by a Caucasian. For reasons I won't go into I could represent only one of them and the Caucasian chose me and the Asian client was represented as he wished.

On the first day of the trial the Asian defendant realised that he had made a mistake in the choice of counsel when his was unable to marshal all the facts and files. The adage, "What you want isn't always what you need," seems appropriate. During the trial, what the jury took on board was my preparation, not the fact that I was female or the colour of my skin. What is sad is that during the trial the Asian defendant came to me and said that he had made a grave mistake. It was a mistake which ultimately may affect his liberty, though of course by then it was far too late for it to be rectified.

It is time to untie those arms and legs put there by preconceptions. I am very fortunate to have the full support of my clerk and head of chambers, who encourage the breakdown of such silly notions.

Romasa Butt is a practising barrister in the chambers of the Rt Hon Denzil Davies