Equitable gender briefing: a long way to go

Barbara Relph and Jacqui Thompson*

2018 was a big year for gender equity in law in New Zealand. It was the first year that the number of women practising law exceeded men. It was also the year the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture launched its gender engagement policy designed specifically for barristers. This policy became a joint initiative with the New Zealand Law Society.

Later that same year, the Law Society launched its Gender Equality Charter. The Charter is a profession wide initiative that contains a set of commitments aimed at improving the retention and advancement of women lawyers.

And then in the same year, the Court of Appeal issued a practice note encouraging oral argument from junior counsel, enabling them to gain experience and confidence. Many hoped that this would help junior female counsel on their journey to taking on lead counsel roles in the future.

Do we have a gender divide?

At the time, some asked why these measures were needed, given it is generally accepted that women and men are equal and should have the same opportunities? The measures were needed because this view had not translated into practice. Funded by the Law Foundation, in 2018 the Bar Association conducted research on the number of women appearing in the Court of Appeal and the Supreme Court over the previous six years. The figures were dire and clearly showed underrepresentation of women at these levels and particularly in lead roles. 1

The Bar Association’s Diversity and Inclusion Committee concluded that urgent intervention was required to increase the number of women briefed. Together with the Law Society, the Committee drafted the Gender Equitable Engagement and Instruction Policy (GEEIP). GEEIP’s aim was to encourage adopters to use reasonable endeavours to improve the statistics on women lawyers taking a lead in court proceedings, arbitral proceedings, and major regulatory investigations.

GEEIP set a target for women to lead 30% of the proceedings, conservatively reflecting the percentage of women in senior roles in the profession, not the 50+% of women in practice, or the 60% of female graduates in any year. Bear in mind this is not a new statistic. Incoming Bar Association President, Maria Dew KC, points out, the number of female graduates was nearly 50% when she graduated over 30 years ago.

Time is not enough

These days we can see more visible changes that indicate a brighter future. Female law graduates now outnumber male graduates at 53.9%. Ten years ago, 43.9% of lawyers were female. 2 Significantly, in the 0-7 post admission category, women make up 63.3% of the group. But in some way the improved figures are a barrier to effect change now; many argue we must wait until these numbers trickle through into the senior ranks before we will see equity – in other words, it is simply a matter of time for the trickle up effect to bring about change.

But the trickle up theory is not working. Given that women have graduated from Law School at near equal rates to men for over 30 years, we should now be seeing these rates playing out in similar percentages in practice at more senior levels. That simply isn’t the case. In 2020, the Bar Association, again with support from the Law Foundation, updated its earlier research to cover 2018 and 2019. While junior and intermediate levels have improved, sadly, the same is not true for senior women. 3 Removing cases which have been briefed by Crown Law, the statistics are even grimmer. The research concluded that the low number of appearances by women as lead counsel, particularly for the appellant in civil matters, suggests little if any progress has been made.

At the commercial or civil bar, the disparity is glaringly apparent. A glance through the Supreme Court’s case list on a single day in August revealed that only one of nine lead barristers was female. In the Court of Appeal later that same week five out of five cases were led by men. These quick tally ups are not an aberration.

In 2012 Justice Susan Glazebrook from the Supreme Court of New Zealand | te Kōti Mana Nui o Aotearoa spoke at a New Zealand Bar Association seminar about the myths around gender equality in the legal profession. She addressed the claim that it takes time for numbers to trickle up to the top. Using statistics from the United Nations, the judge graphically outlined the progress towards women taking on leadership roles in general. At the then current rate of change, it would take another 35 years for women to achieve equality in the boardrooms of New Zealand. There might be progress, she concluded, but it was glacial.

In 2016 Justice Glazebrook updated her address, this time in an article 4 where her Honour outlined why there were financial disadvantages to being a woman. In the legal profession, a 2015 private practice earnings survey revealed that the median annual earnings of male solicitors were 19.2% higher than females. 5

Women are professionally and economically disadvantaged, notwithstanding that they are not a minority. The situation is even worse if you are a woman of colour. The old arguments that there simply are not enough women who are suitably qualified or capable cannot be sustained. As her Honour Justice Glazebrook said:

“Given that over 40% of lawyers entering the profession since 1990 have been women (that is, for over 25 years), one would have expected more movement in the figures than has been seen to date, or, at very least, that the rate of female appointments to senior positions over the last five to ten years would be starting to be evenly balanced.”

Making changes

This outline brings us back to GEEIP and its target. Maria Dew believes that there must be some sort of assessment process to set an expectation that adopting organisations will hold themselves accountable for constantly considering gender in their decision making. “At the end of each year, the organisation can review their behaviour and clearly see whether they have improved or slipped back into old patterns. This constant reminder is a core objective of these gender engagement policies.”

Corporate clients are not the problem. Many corporates are already committed to equitable briefing. They want to demonstrate to stakeholders and the wider public that they are keeping up with societal expectations – “doing the right thing” – and engaging with diversity in every aspect of their business. Polly Pope, chair of Russell McVeagh, says that her firm is fortunate to work with a number of corporate clients which are committed to diversity and inclusion across their organisations and which demonstrate this in their decisions to instruct women litigators.

However, Pope also notes the limited progress in gender diversity in lawyers leading cases in the higher courts:

“New Zealand’s senior bar has significant numbers of former law firm partners in its ranks, and the slow progress in promoting women litigation solicitors is in turn holding back progress at the bar.

All who are leading cases at the senior bar can also shift the dial by ensuring they refer work to women barristers, and by giving specific opportunities to junior and upcoming women barristers. King's

Counsel have considerable sway in the makeup of counsel teams and should use this power thoughtfully. There are some great examples of senior barristers doing this, and these efforts should be redoubled.”

Dione Miller is the Head of Legal at BNZ. Even before BNZ signed up to the Law Society’s Gender Equality Charter, the bank recognised that it had a role to play as both a client and recipient of legal services.

“We knew we controlled what work was instructed out, to whom, and on what terms, and that we had the ability to drive change in the industry in terms of engaging more female lawyers and counsel.

BNZ has a Diversity and Inclusion Council comprised of members of all business units. After signing up to the Charter, we were able to contribute to the Council some of the practical ways in which we could support the promotion and visibility of women in the banking industry and in the legal profession. For example, our terms of engagement of law firms require transparent gender reporting in terms of who is actually doing the work, not just fronting it; this level of reporting translates easily across multiple areas, not just in legal services. When our law firms present to us on topical issues, we make it clear that we want to see equal representation by men and women. If the firm doesn’t have a woman who can speak on a particular topic, we ask them why.”

Miller says that the bank thought creatively about how it could promote gender equitable briefing practices in BNZ’s third party engagement. For example, it changed the dispute resolution clause in its supplier services agreement to require counterparties to consider equitable briefing when selecting mediators – and that extended to its farm debt mediation policies. The bank’s legal team also established a set of practices designed to promote the wellbeing of the team and external providers, which included commitments around being mindful of work-life balance when instructing on matters (for instance, being flexible with deadlines when instructing lawyers with child-care commitments).

Miller notes that the bank is making strong progress in its diversity and inclusion journey. “In 2021, 39% of our senior leaders were women (exceeding our FY21 Target of 38%); 60% of our legal leadership team are women. As lawyers who instruct out,” she says, “we know the responsibilities that come with that privilege and are constantly challenging ourselves to do as much as we can to support the retention and promotion of women in the profession.”

Acknowledging the issues

We know that clients – particularly large corporate clients – are on board with gender balance, and promote diversity for the benefits it brings, including improved culture and insight and, inevitably, productivity. But the low figures for women appearing before our most senior courts (excluding Crown Law cases) suggest that women are not being briefed. The question is, why not?

There are a range of factors but a significant one is visibility. Women are not deliberately excluded; they just don’t pop to mind as readily as the familiar names, most of whom happen to be men. Why are they familiar? They get instructed. This is a cycle which needs to be broken.

Habit or pattern is another factor. Clients and instructing solicitors tend to stick with barristers they have successfully used before. They are perceived to be safe options and most likely to get the best result. This means that they are unlikely to look beyond their safe pool. And because of history - and unconscious bias - they are likely to be male.

And then there are the many assumptions implicit in the problem of gender engagement. It is assumed that men will be tougher in court. It is assumed that men carry more authority and are taken more seriously. It is assumed that women are more emotional and likely to crumble in tight spots. 6

There is also the issue of age discrimination which statistically affects women more than men. Figures from the US suggest that 72% of women experience age discrimination as opposed to 50% of men. 7 We have all heard the phrases and damning comments: she’s a woman of a certain age and stage, she is menopausal, we need younger, fresher ideas. Each of these statements ignore the value of experience and knowledge that can only come with having worked in an industry over the years.

Progressing gender equality

The Gender Equality Charter continues to be an important mechanism for progressing gender equality across the legal profession. It is designed to improve advancement and retention of women and overall culture, rather than being a tick-box exercise grounded in compliance.

The Law Society is working closely with the New Zealand Bar Association on the future direction of the joint Gender Equitable Engagement and Instruction Policy (GEEIP) and its relationship with the Gender Equality Charter. Discussions have included setting voluntary targets for equitable briefing. Many see targets as important. They motivate action and create a mechanism for change. Succinctly put by Maria Dew, “What doesn’t get measured, doesn’t get done.”

The Law Society is working with Charter signatories to benchmark where they sit on gender equality. The Charter enables these organisations to identify gender imbalance in all areas, whether it be partnerships, boards or panels, or who they instruct to represent them in court.

These revisions are timely. Senior women lawyers cannot afford to wait. Their time is now, but the opportunities are being denied to them. This is why documents such as GEEIP and the Gender Equality Charter matter. They highlight the issues and provide a focus for instructing solicitors and clients to think outside the square. They are a constant reminder to step forwards, not backwards.

Barbara Relph is a writer, editor and proof-reader – www.barbararelph.com.

Jacqui Thompson is the Executive Director of the Bar Association and was involved in the research team that conducted the 2020 Bar Association follow up report on counsel appearing in the courts.

1. New Zealand Bar Association “Gender Ratio of Counsel Appearing in Higher Courts in the years 2018-2019: published with the assistance of the New Zealand Law Foundation” (November 2021)

2. Barnett, J et. Al. “Snapshot of the profession 2021” (2021) 948 LawTalk 39

3. Above at n1

4. Glazebrook, S “Gender Myths and the Legal Profession” Canterbury law review, 2016; v.22:p.171-205

5. As above, at p178.

6. For a discussion of this form of discrimination in the United States, refer to the illuminating article by Lara Bazelon “What it takes to be a trial lawyer if you’re not a man” The Atlantic, September 2018 Issue(https://www.theatlantic.com/magazine/archive/2018/09/female-lawyers-sexismcourtroom/565778/, (accessed 30/8/22)

7. “It's OK Boomer: How to avoid age discrimination at work” 2020 NZ Herald (originally printed in the Washington Post) https://www.nzherald.co.nz/nz/itsok-boomer-how-to-avoid-age-discrimination-at-work/OSKJSHEPBJPRO6NM2WVNMNODGM/ (accessed 30/8/22)