Law firms’ problem with women

The last time I wrote about women and the law, it took weeks for the flames to die down. Only a glutton for punishment would return to this topic again. Ahem.

So I’ve been collecting articles about the seemingly endless issue of the apparently insurmountable barrier to the full participation of women in law firms. Another article on that score, this one from The New York Times earlier this week, galvanized me to pull them all together and talk about them. To wit:

  • A Bleak Picture’ for Women Trying to Rise at Law Firms (The New York Times, July 24, 2017): “Women are 50.3 percent of current law school graduates, yet they still make up just under 35 percent of lawyers at law firms, [according to the 2017 Law360 Glass Ceiling Report.] Most important, their share of equity partnerships — where the highest compensation and leadership positions are lodged — remains at 20 percent and has not changed in recent years, the report found.”
  • Study Shows Gender Diversity Varies Widely Across Practice Areas (The American Lawyer, April 17, 2017): “The majority of AmLaw 200 practices have an average female head count ratio of 30 percent. Practice areas with the highest compensation and focus within Big Law, such as banking, intellectual property and litigation, had the lowest percentages of women. Women made up only 35 percent of Am Law 200 litigation departments, 31 percent of banking and taxation practices and accounted for 27 and 23 percent of IP and M&A teams, respectively, [according to a study by ALM Intelligence, Where Do We Go From Here? Big Law’s Struggle With Recruiting and Retaining Female Talent.]
  • The Gender Pay Gap for Big Law Partners: 44 Percent (Bloomberg Business of Law, Oct. 12, 2016): “Of the 2,153 [BigLaw] partners polled [by Major, Lindsey & Africa], men earned an average of $949,000 per year while women brought in $659,000. The differences in partner billing rates ($701 for men and $636 for women) and hours billed (1,703 for men and 1,632 for women) remained relatively small. But the results show women still lag behind significantly in originations, pulling in an average of $1,730,000 versus $2,590,000 for men. … Lack of credit for origination is a common complaint leveled by women in BigLaw.”

And here are a few other recent articles that have been archived at Lexis-Nexis and have thereby been hidden from the world at large:

None of this, of course, is new. When I was a legal newspaper editor 20 years ago, we were assigning articles on the discrepancies between men and women in law firms. I have to admit, if you’d asked me then whether the situation would have resolved itself, or at least improved, 20 years into the future, my optimistic younger self would have said, “Of course!”

Yet here we are, in 2017, having the same discussion, talking in the same careful way about diversity and representation and trying not to upset anyone in upper management. “It really is striking how much attention this problem is getting without any movement whatsoever,” Daniella Isaacson, a senior analyst for legal intelligence at ALI, is quoted in the AmLaw article above. Yes, it is.

I want to say two things here about causes and one about remedies.

The first point I want to make is about sexism. In almost every conversation we have about women in law firms, some folks go to great lengths to de-emphasize the role of overt, intentional sexism in law firms’ overwhelming maleness, in an effort not to offend (male) senior decision-makers. I don’t buy it. There’s an enormous amount of overt, intentional sexism in law firms, as there is in society generally. There are plenty of male lawyers who think less of their female colleagues as a group, who denigrate them (or tolerate those who do), who are fully aware that men exercise more power and make more money in their firms than women do and are perfectly fine with that. Let’s not pretend that sexism isn’t a significant contributor to women’s status in law firms. I’ve seen and heard differently, and I’m confident that you have too.

The second point I want to make is that in addition to sexism, the fundamental structure and culture of law firms relegate women to second-class status. Mark Cohen of Legal Mosaic phrased this issue succinctly and accurately: “BigLaw was architected by men for men.”

Today’s law firms were built by and for late-20th-century married white men, and everything about these firms reflects the choices, habits, preferences, and conveniences of their builders. Anyone is welcome to join these firms and experience great success — just so long as they adopt the choices, habits, preferences, and conveniences of their architects. Work long hours, glad-hand clients, immerse yourself totally in the job. Can’t manage that, because you’re pregnant or you’ve got primary home care or child-care responsibility? Too bad for you. Everyone else here can manage it just fine.

How to succeed in law firms without really trying.

The traditional law firm is more favourable to men than to women because men built it. The people who founded and built these firms enjoyed preferential status in business and society and could leave child-rearing to their domestic partners; they could walk through any door they liked and could spend all the time they wanted in the rooms on the other side. From their perspective, spending 3,500 hours a year on work and billing two-thirds of that time is normal. It’s just the way things are. If you struggled to succeed in this environment, you were the problem. If you tried to challenge the normalcy and sensibility of this environment, you were a threat. If you’ve wondered what the term “privilege” refers to (the non-legal, non-fun kind), this is an example.

So to a certain extent, calling out law firms for being unwelcoming and discouraging to women is like criticizing water for being wet. Law firms were built by and for men; so were most other businesses and organizations in the world. The great majority of other businesses and organizations, though, got over it. They decided that maintaining their default male architecture put them at a strategic disadvantage in terms of talent acquisition and market competitiveness, and they adapted. They haven’t adapted fully, not by a long shot, but most are at least trying.

Similar attempts to restructure law firms away from their “maleness,” however, have met with much less success. At the heart of law firms’ inherent inhospitability to women is the lawyer compensation system, which rewards the outlay of enormous amounts of lawyers’ time and effort, and the procurement of clients and business, above everything else. Go get clients and bill tons of hours: that’s the law firm advancement system in eight words. I and many others can speak from experience how incredibly hard it is to move law firms away from this system of valuing lawyers’ contribution. And yes, partly this is because it’s difficult to rewire any company’s reward system, at any time.

But let’s not kid ourselves: at least as important a reason is because the people who own and control the firm (80% male, most of them in their 50s and 60s) benefit directly from time- and effort-based remuneration, because they have loads of time and they have almost nothing distracting them from their efforts to go get clients and bill tons of hours.

It’s not just that this system makes these guys more money; it’s that it values them for who they are and what they do. This system affirms to them that their choices are the right choices; it vindicates and rewards them for doing things their way. It’s the mirror on the wall assuring them they’re the fairest of all. And if a side-effect of that system is to drive away by the thousands women (and men) who don’t live that life or choose those choices, well, c’est la guerre.

I promised one thing about remedies. I must tell you that I don’t have much to offer here (although happily, others do), because neither sexism nor law firm compensation systems are going to change tomorrow. But I do have an appeal to make, to any law firm lawyer who has read this far and has not stomped off feeling bruised or offended.

My appeal is this: Imagine a world in which half of all graduating lawyers are men (as is the case now), but only about one-third of your firm’s lawyers are male, and barely a fifth of your men are equity partners. Moreover, your few male lawyers are predominantly found in practice areas widely regarded as less profitable and less influential than the practice areas dominated by women. To make matters worse, your women lawyers out-earn your male lawyers by hundreds of thousands of dollars every year. Imagine further that your firm has been like this for decades.

Now ask yourself: Wouldn’t you think there was something wrong with that? If you happen to be male, sure, you’d almost certainly feel like the deck was stacked against you and your fellow men. I’m not appealing to your sense of fairness, though, but to your business instincts.

Wouldn’t you think that your firm was being hamstrung by some kind of systemic, gender-based flaw in its retention, compensation, and promotion practices? Shouldn’t simple arithmetic suggest that about half your lawyers should be men, and that maybe you’ve got a whole lot of less qualified women lawyers hanging around the office and filling out your equity ranks? Doesn’t it seem like you’re needlessly missing out on a whole bunch of great male lawyers? That somehow, you’re not getting the full benefit of what the legal talent market has to offer? And if the answer to all these questions is yes, is it really that hard to flip the scenario around the other way?

My last word on the subject to law firms is this: If you have a significant gender imbalance within your firm’s lawyer population, and especially within your firm’s equity partnership, there’s something wrong with your firm. Somewhere along the line, somewhere inside your firm, something went off the rails and crashed. You don’t have enough of the best people — you demonstrably, obviously, do not. And the reason you don’t have enough of the best people is that you are systematically driving half of them away. This isn’t normal. No matter what it might feel like to your most powerful people, if your firm is 65% male and your ownership is 80% male, your firm is fundamentally screwed up. Fix it.



15 Comments

  1. Mike O'Horo

    Well said. IMO, one of the things that perpetuates the status quo is hourly billing. That antiquated system penalizes creativity and innovation because both are usually applied to make things more efficient. Efficiency is at odds with a business based on time volume.

    A person who can produce the same effect for a client in 60% of the time faces two obstacles:
    1) Getting that kind of efficiency recognized is trying to prove a negative. Who can tell that a sound wasn’t made?
    2) Even if you have an aware, discerning client, who may revere you for it, your firm is only going to record that your hours are 40% lower than your peers’.

    Hours recaptured through more efficient production can be applied to business generation, which will influence the firm’s status and reward systems.

    Finally (and I acknowledge that, coming from me, this will read like the hammer that sees everything as a nail), until lawyers abandon the grossly inefficient “relationships first” business development philosophy and practice, it will remain excruciatingly difficult for those coming of BD age in the era of intense competition to generate the amount of business needed to become peers of those who largely accumulated their impressive books of business under the most beneficial demand conditions any market has ever seen, but that is now gone forever.

  2. Kerri A Froc

    Bravo Jordan. The risk to women is sometimes too great for them (professionally, etc) to spell this out so we need you and others like you to help do it.

  3. Kunoor Chopra

    Thank you for this article. The positive thing in the current legal industry is that there are more options for legal professionals. If we can’t change the law firms right now, women and other minorities have the option of joining alternative legal service providers, technology companies and other similar organizations, many of which don’t operate the same way law firms do and which value and make an effort to increase diversity.

  4. Blair Botsford

    Very important points, although I don’t entirely agree on the strategy for resolving the problem. Have you read Kahneman’s “Thinking Fast and Slow”? Wonderfully insightful treatise on human judgment and decision making with great practical application. Presumably that’s why he won the Nobel prize in economics despite being a psychologist.
    In terms of trying to persuade people to you point, I would try more fox and less hedgehog. What people think is a product of how they think and they don’t do much of either when they feel under attack. They won’t come out of stage one of learning which is unconscious incompetence.

  5. Emily Jelich

    Great article Jordan – the billable hour and compensation systems based on it have so many negative side effects. Moving away from that has the potential to create a much more positive work environment in law firms and much more positive relationships with clients. If only we were further along that journey.

  6. Peter D. Lederer

    I’m very glad you found it timely to speak to this issue again, Jordan. And now, let’s just make things a wee bit more complicated and add racism to the mix. You likely have seen the recent story, “A Portrait of Asian Americans in the Law,” published by the National Asian Pacific American Bar Association and Yale Law School” https://goo.gl/oZ69Tz. For African Americans and Hispanic Americans the figures are likely even worse!

    We can start with the law. But the harsh fact is we have a society to reform. And things are NOT looking good right now.

  7. Susan Hackett

    Thanks, Jordan, for once again jumping into the gap to lead this conversation. I wanted to add a thought: I think there’s a piece of your analysis which flows naturally from your argument, but that wasn’t really brought forward. Yes, there is poor representation of women in equity partnership, but an even more stunning lack of representation in law firm executive leadership. You don’t need more than a hand or two to name the number of women who are or have been managing partners of the largest law firms; I don’t know what the data is on executive committees or practice group leadership, but I’ve got money that says it’s not a whole lot better. So the reality of 50% of the profession not being well represented in the equity partnership is likely directly linked not only to all the reasons you’ve mentioned, but to the low single digit percentage of women in control of daily decision-making.

    There are lots of important decisions that are made by the equity partnership when they head out to the annual retreat; but I’d argue that the most impactful ones to the future of women aren’t made via those meetings or votes (even though women are outnumbered in them); rather, they’re made through administrative policy and HR/hiring practices, through the funding (or not) of marketing/BD and practice group leadership, through the decisions about what topics and materials will be presented to the equity partnership for a vote. Those who control the daily life and the strategic agenda of the organization are in charge and, no surprise, continue to win.

    It may be interesting to correlate your comments about how companies – while still having a long way to go and with inconsistent successes – are doing more to address these issues and reaping the benefits. When the corporate equivalent in the legal profession – law departments – is examined, you can see incredible progress in the number of women working in more senior-level positions, due in no small part to the explosion in the number of women who have been chosen by executive management to be the company’s legal leader – the general counsel.

    Maybe law firms, for all their interest in tuning into what their clients are doing and how they’re thinking, might take a page and focus not only on the issue of partnership representation, but leadership representation. I can assure you, since I spend time with them and they’re not shy about saying so, more and more women leaders in law departments are not only watching, but measuring; and then – what’s the term? oh, yes – executing. In every sense of the word.

    If law firms can’t or won’t change themselves, general counsel may just change the marketplace out from underneath them.

    So hat tip to the many tireless corporate leaders in the US and Canada in pursuit of such goals: Kim Rivera, Caren Ulrich Stacey, Cheryl Foy, Stasia Kelly, Martine Turcotte, Michele Mayes, Kate Chisholm, Elisa Garcia, and Laura Stein, to name a few. And hat tip to the increasing number of male GCs who are doing the same … Don’t like change? You’ll like irrelevance even less.

  8. Carolyn Elefant

    If Biglaw was built by men for men, why do we even care about it anymore? It’s a relic of the past. In today’s fluid world there is no excuse for women with big books of business to stay at an institution that treats them like second class citizens.

    By the way, I am not suggesting that women leave to become gig-workers at #altlaw companies like Axiom or even to start a solo or small firm practice – not that there’s anything wrong with either of those options. But if big law prestige is that important, there’s no reason why women can’t start their own businesses and replicate it. Look at someone like David Boies – I remember when he was “big law famous” – i.e., known only in big law circles and not the real world (I had only heard of him because I read ALM). He started his own firm that two decades later is as prestigious as the one he left – and has handled more exciting, legacy-making cases than he’d ever have handled as a partner-cog-in-the-wheel at big law. Or what about Katherine Zellner? She may not have a huge firm, but she is far better known than any big law partner. Even Gloria Allred – who I don’t particularly like – has a far more exciting and lucrative career than a managing partner at DLA Piper or Dentons.

    If we are truly going to have equality in the legal profession, we need to change the narrative. Biglaw is NOT the end all and be all. In 2017, it is far less relevant than it ever was. If that’s the case, why do we continue to use equality at big law as a litmus test for progress? Real progress would be having women leave big law en masse and build big law firms from scratch, from the ground up.

  9. Bob Jessup

    Jordan writes a post, and Suzanne Hackett and Carolyn Elefant comment. I learned more in the last ten minutes than some all-day seminars I’ve gone to!

  10. Elena Deutsch

    Well said! Thank you for this thoughtful and thorough piece. You’ve exposed the root causes of why so many women want out of big law. I admire people like you who are trying to truly change the systems. I’m working downstream – and finding great joy in helping women associates who are interested in leaving big law.

  11. Jo Aschenbrenner

    I completely agree. “Fix the system and not the woman”.

    Why not try Holacracy to build a law firm and encode Holacracy into Operating Agreement too?

  12. Sara Todd

    I spent 15 years as an associate and then a partner in private practice with large regional firms, while married to a partner at another firm. My husband was firmly committed to the “male privilege” model of law practice, but because he married another private-practice lawyer, he lacked the “full time spouse/domestic servant” support that the male privilege model assumes. Something had to give, so I went in-house, where I thrived (so well that I was able to leave the husband behind). But one thing I have learned from this variety of experience is that nothing will change unless the CLIENTS force it to change. Clients pay the law firms’ bills; they also pay lip service to encouraging diversity in the firms they engage. They pat themselves on the back for requiring their counsel to staff matters with diverse lawyers (including women) and to report demographic information about the professional staff, as if there might be a consequence for failure to demonstrate staffing diversity. But there is no adverse consequence for failing to hire or staff with diverse lawyers, and most of the partners who manage the client relationships (and retain origination credit) are men. Clients also demand the best lawyers (read: most experienced) at the lowest possible cost. So if a firm staffs the client’s matters with diverse professionals, and the client refuses to pay the firm’s standard rates, the client and the firm effectively penalize the diverse attorneys by creating a diversity “ghetto” – great training, perhaps, but horrible realization, and no origination credit. If clients would create incentives by allowing firms to bill diverse professionals at a premium (after all, they are a scarce resource that is in high demand), while also requiring that a portion of the origination credit for a matter be assigned to the diverse lawyer who staffs it, the diverse lawyers would benefit from opportunities to do important, challenging work on terms that made them more valuable to their firms, rather than less. Unless clients figure out a way to improve the real and perceived value of the diverse attorneys they claim to care about, nothing will change.

  13. Nicole Galli

    Jordan this is one of the best discussions of what’s wrong with traditional firms that I’ve seen in a long time (with a great collection of other articles cited). I also fully support and endorse Carolyn Elefant’s insightful comment. Women lawyers can and should take control of their destinies and build the kind of firms they want. When I started practicing law 25 years ago I truly believed traditional law would change in my lifetime and I wanted to be part of making that happen. 25 years later the needle hasn’t moved. Now’s the time for something new. Not only do folks like David Boies show that successful boutiques can be started and grown, every Big Law firm today started as 2 guys in an office. If those guys could start something big, so can every woman lawyer I know – and have a much better experience trying than staying stuck in an environment that undervalues their talent and their contributions. For reasons like this, Carolyn and others have joined me in building Women Owned Law, a new organization dedicated to supporting women lawyers engaged in these efforts. We need to change the conversation and start looking for other avenues of change beyond simply trying to fix a system that works for those in charge and shows no true signs of wanting to change.

  14. Ann R. Pokalsky

    After working in male dominated law firms for over 20 years, beginning as associate, moving on to counsel and eventually partner, I founded a law firm with another female partner. Couldn’t be happier.


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