A woman's world?

What obstacles are women working in the legal profession in the US, UK, Australia and Asia facing today and what is being done to address these issues? Lucy McNulty reports.

For centuries, many in the Western world assumed that a patriarchal order was the natural order that had existed, as the British philosopher John Stuart Mill wrote in 1869, since “the very earliest twilight of human society”1. Indeed it was not until the latter part of the eighteenth century that this notion was seriously challenged. For it was then that the dawn of the ‘Age of Enlightenment’- as the period over the 1700s characterised by secular intellectual reasoning and philosophical writing is now commonly referred to – enabled men and women alike to question the common order of things for perhaps the first time.
This questioning set in motion a women’s rights movement which over the next 300 years was to lead to the liberation of women from a suppressed social grouping to citizens considered equal in standing to their male counterparts, with a right to vote, to hold public office, to fair wages, to own property, to education, to serve in the military or be conscripted, to enter into legal contracts, and to have marital, parental and religious rights. Indeed in today’s post-feminist culture, many assume that institutional gender bias is a thing of the past. Women today can, and do, have it all, surely? A simple Google search for women’s rights organisations still in operation would seem to indicate that the answer is ‘no’. For the search engine lists a staggering 3,310,000 groups dedicated to tackling gender-related discrimination in the modern era. ‘Girl Power’ may be celebrated, but it is not yet universally accepted it would seem. Even in the 21st century, women are facing bias in the home, in public and crucially in the workplace. And the legal profession is no exception. But what form does such bias take? And how does it vary from country to country, culture to culture?
We asked women working in the legal community in the US, UK, Australia and Asia to share their experiences with us. What issues do they believe women lawyers face today? And what has been happening with regards to diversity initiatives in their country in recent years?

UK
“A snail could crawl the entire length of the Great Wall of China in 212 years, just slightly longer than the 200 years it will take for women to be equally represented in Parliament.” So opens a report recently published by the UK Equality and Human Rights Commission (EHRC) – Sex and Power 2008, which examines the number of women in top positions of power and influence across the nation’s public and private sectors. Implying a worrying trend of reversal or stalled progress, the study states that in 2003 6.8 per cent of senior judicial appointments were held by women compared to 9.6 per cent in 2007/8. At this rate, the EHRC explains, “a snail could crawl nine times around the M25 in the 55 years it will take to achieve an equal number of senior women in the judiciary”.
And, according to Fiona Fitzgerald, partner at UK law firm Colemans CTTS Solicitors and chair of the UK support group the Association of Women Solicitors (AWS), the disparities between male and females working in the UK legal sector do not end there. “Over 50 per cent of new entrants to the profession are women,” she says, “however, this is not yet filtering up to partnership level with only 19.6 per cent of partners in the top 100 firms being female2 despite the fact that the total number of equity partners has risen by nearly 4.5 per cent in the last year. There also continues to be a disparity in equal pay in solicitors in England and Wales with the median yearly salary for male solicitors against female solicitors being 32 per cent.”
It would seem that for women lawyers in the UK, achieving true equality in the profession is some way off. And Fitzgerald admits that although the issues affecting women working in the UK legal community “have changed quite dramatically in some ways,” in general “the pace of change is clearly too slow”.
The 2006 election of Fiona Woolf as President of the UK support group for solicitors in England and Wales, The Law Society, brought many of the issues affecting women working in the profession to the fore, Fitzgerald says. “Over a year after she stepped down as The Law Society president, she continues to set challenges for women solicitors to achieve,” says Fitzgerald. “For example, most recently at the AWS inaugural Fiona Woolf lecture in May 2008, Woolf drew attention to the inequalities of pay in the legal sector, and launched the joint Association of Women Solicitors/Law Society equal pay campaign which aims to identify steps the sector can take to address the problem and recommend actions.” Progress may be slow in the UK but it is most certainly under way. But what of the USA?

USA
“Now is the time for less talk and more actions,” says Lisa Horowitz, senior manager of professional development at US law firm McDermott Will & Emery LLP and president of the US support group, The National Association of Women Lawyers (NAWL). A leading national voluntary organisation devoted to the interests of women lawyers and women’s rights and serving as an educational forum for the concerns of women in the legal profession. “As NAWL’s annual survey for the past two years has indicated, while we have had incoming classes with close to 50 per cent women for many years, only 15 to 16 per cent are now in equity and leadership positions,” Horowitz explains, echoing the sentiments of Fitzgerald outlined above.
But the obstacles faced, and indeed the similarities between the issues faced in the US and UK, do not end there as Roberta Liebenberg, partner at US firm Fine, Kaplan and Black and current chair of the American Bar Association (ABA) Commission on Women in the Profession, explains. “Women lawyers’ median earnings in 2007 were estimated at about $53,800 compared with about $105,000 for men,” she says. “These pay differences reflect larger systematic problems facing women in the legal profession.” And, Leibenberg adds, “attrition of US women attorneys is another major issue as 81 per cent of minority female associates leave law firms within five years of being hired”.
The reasons for these discrepancies have been well researched and documented throughout the US and include, (according to the NAWL’s July 2008 National Leadership Summit report Actions for Advancing Women Into Law Firm Leadership): Inaccurate assumptions about women lawyers’ abilities, commitment, and desire to succeed; a lack of well designed institutional infrastructure for supporting women at private US law firms; and, a lack of opportunities given to women from the beginnings of their careers… to name but a few. The report, which details findings and actions recommended by law firm leaders, general counsel and bar association presidents participating in the NAWL’s 2007 Leadership Summit, is intended to encourage firms to act by providing them with specific actions for advancing women lawyers into leadership positions and for achieving the ‘NAWL Challenge’ of doubling the percentage of women equity partners from 15 per cent to 30 per cent by 2015. “It details concrete steps that firms can take to encourage women to remain with their firms and become leaders, which allows firms to maximise the potential and utilisation of this talented group,” says Horowitz. Recommended actions focus on four key areas – leadership, retention and promotion, business development and compensation – and include:

Publish the criteria for advancement to equity partner;
Refine leadership evaluation criteria at all levels;
Align compensation systems to promote the advancement of women into leadership positions, retention and promotion of women, and increasing women’s business development;
Publish compensation criteria;
Facilitate fair credit-attribution;
Measure access to key business-development opportunities by women; and,
Provide training in leadership and business development; workplace behaviour, communication, mentoring, and networking.

The ABA Commission on Women in the Profession has also published several important studies into the area of gender discrimination. The most recent, From Visible Invisibility to Visibly Successful: Success Strategies for Law Firms and Women of Color in Law Firms, tackles obstacles facing minority women working in the profession and is examined in detail on page 16 of this issue. While another report published this year, Fair Measure: Toward Effective Attorney Evaluations provides constructive guidance on how to develop and implement an evaluation process that establishes objective criteria for successful performance, eliminates bias and recognises the value of diversity.
Within the US there is not, therefore, a lack of material or research on the subject. Indeed, as stated in the NAWL summit report, “there are a rich and wide variety of actions that law firms can take” but “a true conviction that women can achieve the same level of success as their male colleagues, and the will to implement change, will make all the difference.”

Australia
This will to implement change appears to be highly prevalent in Australia. As Fiona McLeod, senior counsel (SC), president of Australian support group Australian Women Lawyers (AWL) and chair of the Victorian Bar’s Equal Opportunity Committee, explains, women lawyers associations have worked with the Australian courts, clients, governments and their professional organisations to address issues of inequity and discrimination in the country for more than a decade. “This work has focused especially on the problems of retention and the lack of advancement of women lawyers,” she says. “The measures pursued include the appointment of women in significant numbers to judicial and political office, the development of flexible working conditions for solicitors and equal opportunity briefing policies for barristers.”
“In Australia we have seen the appointment of significant numbers of women judicial officers, growing numbers of women members of parliament and very recently our first-ever woman Governor General, Quentin Bryce,” she continues. “We now have two high court judges, three women law deans and a woman vice-chancellor.”
Perhaps as a result of these appointments, the numbers of graduating women law students in Australia has surged notably. But, if it all seems somewhat too good to be true, it’s because it is. For, much like in the US and UK, these graduates are not going on to fill senior judicial, professional or academic positions as would be expected. “Women are still largely absent from the top jobs, petering out in numbers at middle ranking seniority,” says McLeod. “The composition of partnerships in much of the profession is deplorable. In Victoria in 2006, for example, 14 per cent of partners in law firms were women. In NSW in 2001, only 7.2 per cent of female solicitors were partners, compared with 27 per cent of male solicitors.”
So what is being done to address this retention problem? “Recent policies have focused on flexible working conditions and parental leave policies with limited success so far,” explains McLeod. “Lawyers still feel pressured to prove themselves as super-human, wearing stress as a badge of honour. Firms take advantage of this and encourage it, sidelining those seeking flexibility for life, family and other commitments into dead end appointments.”
But, as McLeod indicates, the business case for retaining experienced lawyers and a diverse workforce are clear, and yet the largest proportion of women in most firms sits just below equity partnership – as salaried partners, senior associates or special counsel. And, McLeod continues, these figures are also reflected at the bars with less than 20 per cent of all independent barristers practising across Australia being female and Queen’s Counsel and Senior Counsel comprising less than 10 per cent of silks at the independent bars.
“In an attempt to address this disparity, we have in the last decade witnessed the development of bar policies to provide assistance to new parents, and a range of formal and informal supports for new readers,” says McLeod. “We have also seen the bars promote and governments adopt initiatives to encourage briefing of women barristers. These government initiatives have in some states become entrenched in contractual arrangements for panel firms and provide the single most important incentive for the nurturing of women barristers.”
But, McLeod is quick to point out that they “are yet to see any real improvement resulting from the adoption of these policies”. Five years ago, she explains, AWL conducted a study as to why women lawyers were under-represented and discriminated against in the profession. The study showed women’s appearances were down in all jurisdictions.
Perhaps owing to such disparities, the Law Council of Australia has, according to McLeod, recently agreed to undertake a further study jointly with AWL to review the number and nature of appearances by women counsel. “I do not expect anything much will have changed,” she says, citing Chief Justice Diana Bryant of the Family Court recent address at the AWL Conference in Melbourne, in which she noted that despite more than a decade of positive measures to encourage the promotion and retention of senior women in the profession, “it is profoundly disappointing and somewhat depressing that we are compelled to constantly re-agitate this issue of the progression of women into senior positions”.
Yet in spite of such damning assessment McLeod is relatively positive about possible solutions. “I have no doubt that there is no single solution to this problem,” she says. “Generous parental leave policies are effective in retaining middle and senior level lawyers. Part-time work and flexibility of working conditions are also desirable if they provide real choices and do not result in removing women from partnership contention into permanent associate-ship or special counsel roles.”
“In my view, it is time to consider the introduction of aspirational targets – for appointments and for briefing practices,” McLeod advises. “I propose an initial target of 30 per cent. Firms should work towards the appointment of women to at least 30 per cent of all equity partnerships and all management roles within the next three years, and take all steps necessary to achieve this target. Likewise, the bars should adopt retention policies with a view to achieving women’s representation of 30 per cent of members and 30 per cent of silks.”
McLeod also suggests that the profession should proclaim its successes and failures to the rest of the world in order to emphasise the importance of these targets. “Successful firms should be awarded and promoted,” she says. “Clients will then have an opportunity to consider the results, decide where they direct their spending on legal services. Current and prospective employees will be able to measure the commitment of their own firms to gender equality and the advancement of women.”
However, McLeod warns, “some firms are far behind and will need a radical program of cultural change” while “others are edging closer and will not find it difficult to make a serious commitment to improve the situation.”

Asia
And from Australia to Asia where, it would seem, opinion on the issues affecting women lawyers working in the region is somewhat divided. While Deanna Wong, a consultant based in the Hong Kong office of international law firm Lovells, states, the issues affecting female lawyers in Asia are “a difficulty to balance work and family commitments, a lack of acceptance of female part-time partners, a lack of support for alternative working hours and working from home, excess competition with one another and a lack of support from other female lawyers”.
Connie Heng, a capital markets partner at the Hong Kong office of international law firm Clifford Chance, has a rosier outlook on the diversity debate. “In Asia, over a quarter of Clifford Chance partners are women, the highest proportion of any region in the firm,” she says. “This in itself sends a very clear message to our female lawyers - who make up over 50 per cent of our legal workforce in Asia - that it is possible to succeed at the very highest level in the firm.” And indeed, as Heng is quick to point out Clifford Chance’s Hong Kong offering are not unique in their approach to women’s initiatives. “Asia arguably has some local market characteristics which help working families,” she explains. “For instance, easy and cost-effective access to childcare is a feature of most of the main Asian financial centres. Many of our most senior female partners are married with young children and combine busy careers with families.”
“Diversity is an extremely important area,” continues Heng. “And one in which we will continue to invest through initiatives such as training, networks, policies and transparency. It makes good business sense to hire, support and retain the very best people and our business and working practices need to reflect that.”
Asia, it would seem, is less affected by the obstacles women lawyers in the US, UK or Australia, face or at the very least as a region it is further ahead than others in its efforts to achieve equality in the workplace.

The future…
No matter how much progress different cultures and countries have made in this area, it is clear that there are a great many parallels in the efforts the legal community the world over are going to, to attain and maintain a truly diverse environment in the legal workplace. In fact, it seems that nowhere is the issue of gender diversity being ignored. The necessary actions have been outlined and the work is underway to ensure these actions are achieved, but, as Fitzgerald warns, “it is now up to all of us to rise to those challenges and ensure that we are at the forefront when it comes to equality”. The path to true equality in the legal sphere may be obvious, but it is also littered with obstacles and only those with the foresight and commitment to invest heavily into tackling the issues impeding the establishment of a genuinely diverse workplace will ever reach the end.

References

The Subjection of Women (1869)
From The Lawyer UK 200 annual report