Women in the Law

What is holding women lawyers back?

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Susan Smith Blakely

Susan Smith Blakely.

Women’s history and progress for women lawyers have been on my mind a lot these days, particularly in March, which is Women’s History Month in the U.S. On March 8, which also is International Women’s Day, I delivered a Zoom webinar to a group of women law students at Durham University's law school in the U.K. It was a perfect way to celebrate the day.

When I want to get an accurate gauge of women lawyers’ progress in the U.S., I sometimes refer to the Best Firms for Women Lawyers list published annually by Working Mother magazine. The most recent list, released in September 2020, included the following passage:

“Women have made great progress at BigLaw firms in recent years. … This year’s list highlights firms that averaged 23% women among equity partners, compared with only 20% five years ago.”

There are two things wrong with that explanation of the women lawyers’ recent progress. First, not all women lawyers practice in the rarified BigLaw space. Second, “great progress” is misleading.

A more accurate measure of women lawyers’ progress was included in the National Association for Law Placement’s 2020 NALP Report on Diversity in U.S. Law Firms, released in February, which found that women continue to make only “incremental progress” at major U.S. law firms. According to that report, 21% of equity partners in major law firms are women—only 1 percentage point higher than the statistics reported by NALP for the year 2019—a statistic described in the report as “still considerably underrepresented.”

Even if you prefer to adopt the slightly more encouraging Working Mother statistics, it is important to recognize that 23% of equity partnerships for the girls is not the same as 77% for the boys. It is hardly “great progress.”

Continuing challenges

Women lawyers’ continuing challenges were addressed recently at the World Forum for Women in the Law sponsored by the ABA Commission on Women in the Profession, held Jan. 27-29. The theme of the forum was an urgency to break the bonds that have held women back in the profession for too long.

Speakers at the forum emphasized the needs to: 1) hire and retain more women lawyers; 2) show respect for women lawyers; 3) promote more women lawyers; 4) provide more leadership positions for women lawyers; and 5) adopt practices that are family-friendly to allow more women to advance to leadership positions.

Too often, however, law firms do not meet those goals. Rather than tackle the big issues identified by the forum, many large law firm leaders keep throwing money at female practitioners thinking it will solve the problems. But the experiences of the pandemic and its effect on women lawyers make it clear that money alone is not the answer.

And without the solutions we need, the percentages of equity partners who are women, as measures of diversity and equity in the profession, will remain unimpressive.

What went wrong?

In 2008, when I was conducting research for my first book, I interviewed a male managing partner of a national law firm. At the end of the interview, I asked him whether he and his mostly male partners ever discussed looking at flexibility for lawyer-mothers as less of a problem for the women and more as an opportunity for the firm with the goal of retaining talent. He looked at me quizzically and responded that the topic never had come up. And I was left hoping for a more satisfactory answer in the future.

But I have been disappointed. After more than a decade, the prevailing law firm position still seems to be that the unique work-life challenges for women lawyers are for the women to solve.

Although there is universal recognition of the high skill levels among women lawyers, it has not been enough to force solutions. Structural issues in law firms—such as unwillingness to embrace flexible scheduling, treatment of new matter generation credits and fee sharing—are impediments to progress, and women lawyers continue to leave practice in increasing numbers, especially during the pandemic.

But they all don’t leave for the same reasons, and understanding the varied reasons for their departure is critical to solving the problem.

The failure of law firm cultures

Some women leave law practice as the result of gender bias, sexual harassment and the lack of respect they feel in some law firm cultures. Recent research demonstrates that these offenses are still very present in legal workspaces and are not taken as seriously as they should be.

My experience confirms it. Several years ago, while speaking at a large and very prestigious global law firm, I encountered something almost unbelievable.

Following my general remarks about sexual harassment and implicit bias (not directed to a specific law firm), the pushback from firm leadership was shocking and centered on a robust defense of the firm and its “first rate” HR department. There was absolutely no recognition that unsavory stuff happens—even at top-rated firms—and that there’s a critical need for implicit bias training. It was all about protecting the brand.

The values battle

More often, however, the departures of women attorneys are much more predictable and are a function of the competing needs of family and the profession. According to the November 2019 ABA report Walking Out the Door, the top reasons women cite for leaving law practice include caretaking commitments (58%) and work-life balance issues (46%).

For many women it is a values issue. Law firm leaders must be willing to ask the important questions:

• What do women lawyers want?
• What do women lawyers need?
• Are women lawyers finding law firm cultures that reflect their values and what they want and need from law practice?
• What will keep them in the profession?

To get answers to those questions, law firm leaders must ask the women lawyers themselves—not consultants who advise about issues affecting women lawyers.

The process starts with creating trust relationships to ensure the information gained will be confidential and will not negatively impact the careers of participants. Law firm leaders must reach out in empathetic ways as evidence that the organization has a beating heart.

The road forward

The skills needed to overcome gender discrimination and implicit bias can be taught. Breaking down other obstacles to equal opportunity can be remedied by developing workplace flexibility to assist lawyer-caretakers. And a thorough review of policies that often disadvantage women lawyers, such as fee sharing and equitable distribution of client generation credits, can lead to changes that are necessary to even the gender playing field.

It will be challenging for law firms, but help is on the way from corporate clients, who once again are demanding compliance with diversity goals from outside counsel. Similar initiatives have been tried before with varying degrees of success, but the most recent effort spearheaded by Coca-Cola has the markings of both commitment and immediacy.

As stated by Coca-Cola’s general counsel in a letter to outside counsel earlier this year, “We will no longer celebrate good intentions or highly unproductive efforts that haven’t and aren’t likely to produce better staffing.”

Coca-Cola’s directive, which forces outside counsel to staff at least 30% of new matters with diverse lawyers and makes payments withheld for failure to comply with the directives non-refundable, is evidence that the time for diversity programs has potentially never been more urgent.

Once again, clients are clearly stating that gender equity is not only the right thing to do, it is also the smart thing to do. It remains to be seen whether law firms are listening.

Susan Smith Blakely is a former partner, law career counselor and author of the Best Friends at the Bar book series for female lawyers. Her most recent book is What Millennial Lawyers Want: A Bridge from the Past to the Future of Law Practice.

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