Women in the Law

Issue June 2009 By Bill Archambeault

Women in the law.jpgA century ago, Portia Law School opened its doors in Boston as a women-only law school to help fulfill an unmet need — women were simply not accepted into law school.

Eventually, women would be seated next to male students, and are now enrolled in nearly equal numbers. After that initial struggle for acceptance, women are now being hired by large law firms at rates roughly equal to that of men.

Portia — now New England Law Boston — started celebrating its 100th anniversary in 2008 in grand fashion, including appearances by the only two women to sit on the U.S. Supreme Court, Justices Sandra Day O’Connor and Ruth Bader Ginsburg. The celebration was a proud acknowledgment of the school’s longevity and its continuing success. It was also, in many ways, a memorial to the passing of a distant era.

But that inequitable era has evolved into a modern one with modern challenges, disparities and frustrations. Despite all of the accomplishments of the last 100 years, women still lag notably behind their male counterparts in everything from compensation to leadership opportunities, with some calling the lack of women in leadership roles nothing less than a “crisis.”

The problem was summarized in a 2003 report, “Charting Our Progress: The Status of Women in the Profession Today,” issued by the American Bar Associations’ Commission on Women.
“In light of the number of women law school graduates over the past 25 years,” the report said, “… the overall data … make it clear that the American legal profession has not yet come close to achieving gender equity.”

More recent surveys reveal the problem to be an ongoing concern. Nationally, women make up approximately 47 percent of all law school students and 45 percent of all associates at law firms, according to “A Current Glance at Women in the Law 2008,” another report issued by the Commission on Women in the Profession. And yet, improvement across the spectrum in recent years has been incremental. Attempts to level the playing field have drawn widespread attention, yet statistics reflect the reality that the gains fall far short of expectations.

The “Charting Our Progress” report found a gradual but unspectacular pace of change: The number of women partners in major law firms increased from 12.9 percent to 16.3 percent between 1994 and 2002. During that same period, the number of women general counsels at Fortune 500 companies increased from 4 percent to 15 percent, and the number of women in various federal judiciary posts increased from around 12 or 13 percent to 16 or 17 percent.

At those rates, another study estimated, it could take another 80 years for women to pull even with men.

Another telling statistic reveals the glacial pace of progress: the median weekly earnings of women lawyers working full time increased from 73 percent of the earnings of their male colleagues in 2000 to 76 percent in 2003.

Massachusetts Appeals Court Associate Justice Fernande R.V. Duffly, the immediate past president of the National Association of Women Judges, said she and others had expected that once the shortcomings in law school acceptance and entry-level law firm hiring were corrected, other inequities would begin to dissipate.

“I really thought that would be the end of our job,” Duffly said. “That just hasn’t happened. I think it’s very complex and a lot of people are looking at it.” Finding solutions has consumed the attention of numbers of task forces, organizations, bar associations and independent authors, reflecting the complexity of the problem.

Duffly was an advisory board member and participant at the inaugural “Women’s Power Summit on Law and Leadership” from April 29 to May 1 in Austin. The conference, hosted by the Center for Women in Law at the University of Texas School of Law, addressed the particular problems confronting women by assembling a panel that included some of the nation’s most prominent women lawyers.

Large firms
One of the most vexing problems is the failure of large law firms to promote and retain women. Women are leaving large law firms to raise families and care for elderly parents or take less stressful jobs, either at smaller firms, as corporate counsel or at government agencies. Those departures, which have been referred to as a “leaky pipeline,” minimize the influence women have on the profession overall, limit the pool of candidates for the bench and deprive younger women associates of mentors and role models.

“When you have a strong nucleus of senior women, that helps the pipeline,” and younger women are encouraged by the possibilities, said Roberta D. Liebenberg, a partner at Fine, Kaplan and Black in Philadelphia and chair of the American Bar Association’s Commission on Women. “When you look at the pipeline issue, women should be doing better. Despite the passage of time, you’re not seeing the parity.”

Much of the large firm structure works against women, Liebenberg said, from the grueling pace that prioritizes work over family, to the lack of role models and mentors, to more traditional biases that judge aggressive women negatively.

Firms need to do a better job considering women’s perspectives in how they operate, she said. Whether it be work schedules, evaluation and promotion criteria or compensation policies, women’s concerns need to be acknowledged if large firms want to retain their most talented and promising women attorneys.

“You need to have women appointed to really critical management and leadership positions,” Liebenberg said.

Despite persistent shortcomings, many firms seem genuinely concerned about becoming more diverse and retaining their top female attorneys, she said.

“People have been working really hard to come up with solutions and identify these barriers and put a spotlight on these issues,” Liebenberg said. “Definitely, firms have made tremendous progress. It’s not that people aren’t trying to solve the problem. Yet, despite the attention, you’re not seeing the same progress you’d like to see.”

Pressure has been put on large firms to offer flexible work schedule programs, but the large-firm structure and the demand to meet billable hour expectations can limit their effectiveness, Liebenberg said. Only about 6 percent of large firm lawyers take advantage of flex-hour programs, she said, and women account for 78 percent of those who do. And even when flex programs are offered, attorneys who take advantage of them are sometimes judged as being unwilling to work hard enough to prove themselves.

“There’s a stigma attached to it,” she said. “You really need a strong commitment from management that if you take flex time, you will not be stigmatized.”

The pressure to choose between career and family is real. At least for women. “Women Lawyers and Obstacles to Leadership,” a 2007 report by Mona Harrington of the MIT Workplace Center and Helen Hsi of the Sloan School of Management, surveyed thousands of lawyers. One respondent relayed a cutting comment about the way some women lawyers view their opportunities for advancement at large firms: It’s “the best-paying dead-end job they have ever had.”

That study, which was released by the Equality Commission, a partnership of the Women’s, Boston and Massachusetts bar associations, illuminated the differences between men and women on the partnership track. The study found that “Most of the male lawyers in law firms live with spouses or partners who have a lesser commitment to their own careers, hold little or no financial responsibility for the household, and are able to assume responsibility for family care.

“Somewhat like women pathbreakers of earlier generations, women who stay in firms to non-equity and equity partnerships limit their family commitments to a greater extent than their male colleagues,” the study continued. “Overall, men are more likely than women to be married or living with partners, to have children, and to have more than one child.”

It’s not unheard of for women to lead large firms, but it is the exception. According to the Boston Business Journal’s 2008 Book of Lists, women were managing partners at only two of the area’s 20 largest firms and only 11 of the top 100 firms. Regina M. Pisa, the managing partner at Goodwin Procter LLP, the second-largest firm in Massachusetts, said she doesn’t face any different challenges than her male counterparts, however.

“Women have made great advancements in the profession and I am proud to have been chosen by my partners as the first woman chairman and managing partner of one of the nation’s leading law firms and one of the largest headquartered in Massachusetts,” Pisa said. “However, the challenges that I face as the managing partner of a large law firm today are no different — especially in the current economy — than my peers across the country, regardless of their gender.” In general, she said, the profession’s challenges transcend gender barriers.

“Practicing law is a demanding profession,” Pisa said. “As leaders of firms, it is our responsibility to provide lawyers — both women and men — with the support they need to address these challenges and equip them with as many tools as we can so they can carve out careers that provide the work-life rewards that they seek.”

Law schools
When Portia founder Arthur Winfield MacLean agreed in 1908 to teach two women to prepare them for the bar exam, women still didn’t have the right to vote. He wasn’t a feminist, according to Philip K. Hamilton’s 2008 pictorial history, New England School of Law, “but he was convinced that women had the minds and temperament to excel in law study and law practice.”

Word spread, more women signed up, and by 1929, 25 percent of the women graduating from law school nationwide came from Portia, according to New England Law Dean John O’Brien. “We like to think that we were a big player in the marketplace of giving women a chance.”

At a New England Law question-and-answer session with 180 students that was covered heavily by the media in March, Ginsburg spent nearly two hours answering questions, some of which dealt with the challenges she faced as a woman.

Ginsburg said that overt decisions based on gender are over, and that women can get into law school as easily as men. The problem surfaces when women attempt to balance professional advancement and raising a family, she said, though laws like the Family Medical Leave Act help. Women, typically, still handle the bulk of the responsibility for raising children. “When men take an equal part in raising the next generation, that’s the day women will be truly liberated,” Ginsburg told the students.

New England Law Dean John O’Brien said the advances have been gradual but impressive. When he was a law student, from 1974-77, women made up a relatively small part of his class. But the accomplishments of women pioneers in the field were beginning to take hold, he said.

“I was heartened to hear (Ginsburg) say that most of the roadblocks that were there are no longer there,” he said. “It really is striking. It just didn’t happen as quickly as it should have.”

Ronald Chester, a professor of law at New England Law and the author of Unequal Access: Women Lawyers in a Changing America, a history of the school, said, “It’s certainly worlds better than it was for women in the ’20s and ’30s, but there’s still lots to be done. Some women today have no idea how bad it was. There’s been an enormous revolution.”

“It’s a different world, but it doesn’t mean that things couldn’t still be better,” he said. In many ways, pioneers like O’Connor and Ginsburg achieved what they did simply because they were extraordinary and couldn’t be denied success. “When you really know that they’ve arrived is when mediocre women get the same opportunity as mediocre men,” Chester said.

The judiciary

Women in the judiciary.jpgSupreme Judicial Court Chief Justice Margaret H. Marshall remembers times when she was the only woman in a courtroom. Now, women aren’t just in the courtroom, they’re often running it. For example, four of the seven Trial Court chief justices are women, and three of the Supreme Judicial Court’s seven justices are women, including Marshall.

When a fourth woman was appointed to the SJC in 2000, “It was almost as if the dam had broken,” Marshall said. Maintaining three or four women on the SJC, she said, “probably puts (Massachusetts) at the front of the pack.”

With women comprising 42.9 percent of the SJC, Massachusetts is tied with 10 other states for seventh place nationally, according to a National Center for State Courts survey of state courts of last resort.

“There has been a steady increase in the number of women in the judiciary. I think it would be fair to say that whichever way you interpret the data, there have been gigantic steps for women in the judiciary since I graduated in 1976,” Marshall said. “Unquestionably, there have been strides made. That has been a sea change during my professional life.”

Women hold a number of positions of prominence in the Massachusetts judiciary, and a few have achieved noteworthy positions at law firms and law schools, but those examples may mask the lack of accomplishment overall. “In the profession as a whole, it’s harder to judge the gains,” Marshall said.

And unfortunately, Marshall noted, minorities, particularly women of color, have lagged even further behind. (The ABA recently published a report, From Visible Invisibility to Visibly Successful: Success Strategies for Law Firms and Women of Color in Law Firms, that addresses that demographic and the larger disparities they face.)

When women weren’t being admitted to law school or landing jobs at large firms, the problem was easier to identify and address, said Duffly, of the Massachusetts Appeals Court. The problem now is there’s no single, simple reason women haven’t made more significant advances. Tremendous amounts of data are being collected, tracked and analyzed that could shed more light and eventually yield a plan for correcting the inequities.

“You can’t just say that women just don’t want to work that many hours. I don’t think it’s acceptable to say that women just don’t want to be here,” Duffly said.

It’s critical that the profession solve the problem, she said, and not simply because it’s an issue of fairness for women.

“Ultimately, having more women in the profession and advance will benefit everyone,” Duffly said, noting that it’s particularly important for women to be well represented in the judiciary because it sends an important message of fairness to people relying on the courts for justice.

“It’s essential to our way of doing justice that it be as broad a judiciary as possible,” she said. “It’s so crucial to maintaining our independence. Having an independent judiciary is dependent on doing our job in a way that people view as fair, and having a diverse group is very important.”