Looking to the Future

Looking to the Future

By Deborah Guyol

WHERE WE WERE AND WHERE WE ARE

My law school class when I graduated, in 1982, was about one-third women. But there were only two female professors, and of them, only one really counted because the other taught legal writing, considered a lesser post. After graduation, I headed off to a “Biglaw” firm in New York, where there were only two female partners. When I left that firm five years later, four of the 88 partners were women – not even 5 percent.

Things are different today. Women now comprise, on average, around 19 percent of Biglaw equity partners 1 and something under 40 percent of law school faculty. But wait: Women represent well over a third of all U.S. lawyers, and half of law school students. And it’s been 37 years since I graduated. Clearly things are not quite different enough. Here’s a snapshot of how we’re doing now.

Biglaw

According to the National Association for Law Placement (NALP) “2018 Report on Diversity in U.S. Law Firms,” 2 the percentage of women who are partners at “major” (undefined) law firms increased from 12 percent in 1993 to 23 percent in 2018 – not quite doubling over a period of 26 years. And the 23 percent number covers metropolitan area averages from a dismal low of 16 percent to a more respectable high of 29 percent. This might look acceptable unless you consider that women comprised just over 35 percent of all 109,459 lawyers at the firms surveyed.

Further, the term “partner” in this survey apparently covers both equity and non-equity partners. Another survey, Working Mother magazine’s July 2018 piece “The 2018 Working Mother 60 Best Law Firms for Women,” put the average representation of women among equity partners at a slim 21 percent. In some of these “best” firms, only 14-15 percent of equity partners were women. 3

Well, but the percentage of equity partners isn’t the only measure of progress, is it? Sadly, in the Biglaw world, it is the one people look to. Working Mother must have considered other factors in choosing its “best.” These are discussed below, in the “What Is to Be Done” section.

The Judiciary

The National Association of Women Judges has tracked women on the state court bench since 2008. That year, 25 percent of state court judges overall were women, the state-by-state figures ranging from 13 percent to 42 percent. Ten years later, the number is 33 percent, with a range from 15 percent to 49 percent. While women are well represented in the judiciary in several states, many others have unfortunate records. 4

As of 2016, on the federal bench, 36 percent of judges on courts of appeal and 33 percent of judges on district courts were women. According to the National Women’s Law Center Fact Sheet, the source of these numbers, women are still “severely underrepresented” on the 3rd Circuit and 8th Circuit benches, and there are six U.S. District Courts around the country where there has never been a female judge. 5

Ideally, the makeup of the bench would represent the population as a whole, not the population of lawyers. Again, we’re not there. In many parts of the country, we’re not even close.

Solo and Small Firms

In the most recent statistics – from 2005! – the American Bar Association (ABA) found solos to constitute 48 percent of private practitioners, and firms of two to five lawyers another 14 percent. 6 Anecdotal evidence suggests that women make up a substantial segment of the solo-and-small-firm world, but the ABA’s numbers do not break this category of lawyer into subcategories. Assuming the proportion of solo and small firm lawyers has remained stable over the intervening years, and that the percentage of lawyers in this category who are women roughly equals the percentage of women in private practice as a whole, we can only conclude that someone should be paying more attention to how this large segment of our population is faring.

Public Sector

Again, statistics are lacking. But in the courtroom, at least, women in the public sector are reportedly better represented than in the private. A study from the New York Bar showed women were 38 percent of lead counsel in public interest cases and almost 40 percent of lawyers representing public entities in civil litigation. The corresponding numbers for private practice cases are 19.4 percent and 18.5 percent. 7

Academia

One source claims that women make up less than 40 percent of law professors overall, while they constituted, in 2018, more than 50 percent of total law students. 8 Women are currently 35 percent of law school deans, up from 30 percent in 2015. 9

In-house Counsel

As of the ABA’s April 2019 report, 30 percent of general counsel for Fortune 500 companies were women, as were 24 percent of general counsel for the Fortune 501- 1000. This represents a modest improvement over numbers from 2008, when 18 percent of general counsel for the Fortune 500 and 16 percent of general counsel for the Fortune 501-1000 were women. 10

Judicial leaders discuss the future of women on the bench during a panel at the 2008 NCWBA Annual Summit in New York. The panelists, from left to right, are Justice Betty Roberts, Judge Nancy Gertner, and Justice Fernande R.V. Duffly.

Photo Courtesy of NCWBA

There’s still a lot of work to be done. Early efforts were largely made by the women themselves, but at this point, the profession as a whole is paying attention.

Systemic Bias

“You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession,” a September 2018 report by the ABA, the Minority Corporate Counsel Association (MCCA), and Hastings College of Law, confirms bias in the legal profession. 11 Announcing the report, an ABA news item states: “Despite efforts to reverse the trend, a new study confirms widespread gender and racial bias permeates hiring, promotion, assignments and compensation in the legal industry. Fifty-eight percent of women attorneys of color, and half of white women lawyers surveyed say they have been mistaken for administrative staff or janitors. ... In glaring contrast, only seven percent of white male lawyers report a similar occurrence.” 12

The report addresses four main patterns of gender bias: Prove-It-Again (need to work harder); Tightrope (narrow range of behavior deemed appropriate); Maternal Wall (bias against mothers); and Tug of War (conflict between members of disadvantaged groups resulting from bias in the environment). And it prescribes corrective action; see below.

The Compensation Gap

It’s real! According to the U.S. Census Bureau, “At mid-career, when earnings peak, the top 10 percent of female lawyers earn more than $300,000 per year, while the top 10 percent of male lawyers earn more than $500,000.” Furthermore, the 76 percent income ratio between full-time year-round-working female and male lawyers is lower than the 80 percent female-to-male ratio across all occupations. 13

WHAT IS TO BE DONE?

In my innocent optimism, I assumed as a young lawyer that it would only take time – that as more and more women became lawyers and eventually reached critical mass in the profession, men and the institutions they controlled would come to recognize us as equals and treat us accordingly. I was mistaken. There’s still a lot of work to be done. Early efforts were largely made by the women themselves, but at this point, the profession as a whole is paying attention.

The ABA – Interrupting Bias

The report addresses each of the patterns of gender bias with “bias interrupters [which are] tweaks to basic business systems that are data-driven and can produce measurable change. Bias interrupters change systems, not people.” The report itself contains specific directives for avoiding bias in hiring, work assignments, performance evaluations, compensation, and sponsorship (mentoring) recommendations. (See note 12.) We can only hope its recommendations will be implemented.

The Mansfield Rule

The Mansfield Rule, launched in 2017 by Diversity Lab, is named after Arabella Mansfield and “asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys. And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be ‘Mansfield certified.’” 14

It is a truth (almost) universally acknowledged that diverse teams make better decisions; unconscious bias can make diversity harder to achieve. “The Mansfield Rule helps us bring greater intention to our considerations and actions so that we can achieve our aspirational goal,” said Kathryn Fritz, Fenwick & West managing partner. 15

Mansfield Rule 2.0 was born in July 2018 and includes LGBTQ+ lawyers in addition to women and persons of color. Some 65 firms have signed on to the program. 16

And in March 2019, Mansfield Rule: Legal Department Edition, was launched. It sets even more demanding goals for in-house legal teams. At the launch, eight legal departments signed on. 17

Women’s Bar Associations

Thirty-three states and the District of Columbia have one or more women’s bar associations, each with a goal similar to that of Oregon Women Lawyers, which is “To transform the practice of law and ensure justice and equality by advancing women and minorities in the legal profession.” I lead with my state in part because of Oregon’s excellent record of women on the bench: Currently five of seven state Supreme Court justices are women, and overall, 43 percent of state court judges are women, whereas the national average is 33 percent. Stateby-state percentages of women on the bench in 2018 can be found at www.nawj.org/statistics.

Women’s bar associations play an important role in advancing women in the legal profession, offering such resources as continuing education and networking programs, mentorship, and assistance in navigating the judicial application process.

Photos Courtesy of the NCWBA

The work of Oregon Women Lawyers in helping achieve this level of success is instructive. Its Road to the Bench program helps women navigate this path with an educational pamphlet, continuing education and networking programs, mentorships, and – perhaps most helpful – mock interviews.

Oregon is not alone in these efforts: Minnesota Women Lawyers offers similar assistance to judicial hopefuls; four of the seven justices on its Supreme Court are women, and overall, 44 percent of its state court judges are women. See also Washington, where six of nine Supreme Court justices are women and women make up 39 percent of state court judges overall. California Women Lawyers offers “So You Want To Be a Judge,” which “demystifies the judicial application process”; Massachusetts’s “Judicial Pipeline” is like Washington’s. Women’s bars also offer programs aimed at career advancement, dealing with work-life balance and public policy. Minnesota Women Lawyers offers continuing education programs, networking and mentorship opportunities, assistance in seeking appointment to judicial positions, and more. Colorado Women’s Bar Association has a Public Policy Committee that works for the interests of women and children in the legislative arena and the courts.

Law Firms Take Steps

Many large firms offer benefits or other features that warrant their inclusion on Working Mother’s “best” list. These show a way to the future:

• Parental leave policies (up to 20 weeks of paid leave)

• Other support for parents, including child care

• Flexible and reduced work schedules

• Formal mentoring programs, including leadership and rainmaking

• Programs addressing pay equity

• A Women in the Courtroom program

Several of the firms listed noted that 50 percent of new partners were women, that women had a significant presence on firm compensation and executive committees, and that one could be a partner even if working reduced hours. 18

Anecdotally, some of the change is driven by evolving attitudes in the culture at large, in which parental issues are no longer exclusively female.

Women-owned Firms

The gender gap in law firms has led many women to form their own firms. An ABA news item reported “healthy growth” in firms owned by women. 19 And the women who have formed these firms report high satisfaction in the areas of control, work-life balance, compensation, and entrepreneurial opportunities. Women-owned firms are more family friendly for both women and men. “[D]espite the hand-wringing about women’s success in the biggest law firms, the same limitations are not inherent in the small-firm world.” 20

Some of the stories: 21 In 2012, Stephanie Scharf, chair of the ABA Commission on Women in the Profession, founded what became Chicago’s largest women-owned law firm – Scharf Banks Marmor. Jennifer Beckage, Buffalo tech and privacy lawyer and former partner at Biglaw firm Philips Lytle, in 2018 formed a tech and privacy boutique firm, Beckage PLLC, with offices in Buffalo and New York. Kelly Culhane formed Culhane Meadows, a virtual firm, in 2013. Forty percent of its partners and 60 percent of equity partners are women. Sara Lincoln left a large firm in North Carolina in 2009 and joined with Tricia Derr to form Lincoln Derr, a firm specializing in medical malpractice defense. As a litigation boutique with eight of its 10 lawyers women, it breaks stereotypes in more ways than one. 22 Nicole Galli co-founded a trade association, Women Owned Law, which had 200 members as of late 2018. Its mission is to connect, support, and advance women entrepreneurs in the law; its “vision” is “Empowering women entrepreneurs to revolutionize the business of law.” See also NAMWOLF, the National Association of Minority and Women Owned Law Firms, https://namwolf.org/

Financial Matters

Perhaps surprisingly, some efforts to close the gender gap involve financing. The Equity Project of Burford Capital, launched in October 2018, “earmarks $50 million to finance commercial litigation and arbitration led by women. That can mean that a woman litigator is first chair; a women-owned law firm is representing the client; a woman litigator earns origination credit; a woman partner is the client relationship manager; or a woman serves as plaintiffs’ lead counsel or chairs the plaintiffs’ steering committee.” 23 The project reported in January 2019 that initial response to its initiative was encouraging. 24

It’s always risky, but sometimes it works. Lucy Marsh, a full professor at University of Denver’s law school, filed a complaint with the Equal Employment Opportunity Commission (EEOC) when she learned that female full professors were paid on average $11,000 less than similarly situated men. The university had acknowledged the difference in 2013 but failed to correct the situation, so the EEOC sued. In a settlement finalized in June 2018, the school agreed to pay $2.66 million and change its ways: It must increase the pay of the seven female professors who complained, publish salary and compensation information to all faculty, and hire a labor economist to study compensation equity annually for at least five years. 25 Marsh expressed hope that the message would spread.

LOOKING AHEAD

Change is decidedly afoot, and conditions for many women lawyers have improved. But the work is far from finished – and achieving equality is only part of the goal. In the end, we aspire to change the business model to one that is more humane – that does not honor partner profits and billable hours above all; to one that recognizes a life outside the law firm. As Ruth Bader Ginsburg said, when a male law clerk told her he would sometimes have to leave early for day-care pickup, “This is my dream of the way the world should be. When fathers take equal responsibility for the care of their children, that’s when women will truly be liberated.” 26

Endnotes 1. “Making Strides Towards Gender Equality in the Legal Profession,” by Patricia Lee Renfro, ABA Business & Corp. Comm. Newsletter, Spring 2019. 2. Available via a link to a pdf file at https://www.nalp.org/reportondiversity 3. “Best Law Firms for Women 2018,” workingmother.com Aug-Sept 2018. 4. Compare https://www.nawj.org/statistics/2008-us-state-court-women-judges with https:// www.nawj.org/statistics/2018-us-state-court-women-judges 5. http://www.nwlc.org/resource/women-federal-judiciarystilllong-way-go-1 6. Email communication from Kimberly Kocian, Director, ABA Solo, Small Firm and General Practice Division. 7. https://www.bizjournals.com/bizwomen/news/latest-news/2017/08/law-women-more-likely-to-lead-public-sector-cases.html?page=all 8. From a review of Unequal Profession: Race and Gender in Legal Academia, by Meera E. Deo. https://www.sup.org/books/title/?id=25601 9. https://www.law.com/nationallawjournal/2019/01/10/ more-minority-women-ascend-to-law-dean-jobs/ 10. The ABA’s statistics page provides figures on women in the profession from 2008 to 2019. https://www.americanbar.org/groups/diversity/women/resources/statistics/ 11. https://www.americanbar.org/groups/diversity/women/publications/perspectives/2018/ october-november/new-you-cant-change-what-you-cant-see-interrupting-racial--gender-biasthe-legal-profession/ 12. This report was prepared and written for the ABA’s Commission on Women in the Profession and the Minority Corporate Counsel Association by Joan C. Williams, Marina Multhaup, Su Li, and Rachel Korn of the Center for Worklife Law at the University of California, Hastings College of the Law. See https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/ new-study-finds-gender-and-racial-bias-endemic-in-legal-professi1/ 13. https://www.census.gov/library/stories/2018/05/women-lawyers.html 14. https://abovethelaw.com/2017/06/ get-ready-for-the-biglaw-rooney-rule-as-firms-try-to-actually-do-something-about-diversity/ 15. Id. 16. https://www.diversitylab.com/pilot-projects/mansfield-rule/ 17. https://abovethelaw.com/2019/04/bringing-diversity-to-the-in-house-world-get-ready-forthe-legal-department-edition-of-the-mansfield-rule/ 18. See note 3 above. 19. https://www.americanbar.org/news/legal-news/ new-female-owned-firms-counter-gender-disparity-in-law/ 20. https://www.lawpracticetoday.org/article/women-solo-success-small-firm/ 21. Several of these stories came from https://www.law.com/newyorklawjournal/2018/10/09/ women-owned-law-firms-surge-amid-gender-disparity-in-the-profession-389-46189/ 22. https://lincolnderr.com/our-story/ 23. http://www.burfordcapital.com/blog/the-equity-project-what-it-is-and-how-it-works/ 24. http://www.burfordcapital.com/blog/update-the-equity-project/ 25. https://www.eeoc.gov/eeoc/newsroom/release/6-1-18.cfm 26. Notorious RBG: The Life and Times of Ruth Bader Ginsburg, Irin Carmon and Shana Knizhnik (Dey St. 2015), at 123