[The events described in this article are true. However, some details have been changed to protect both the innocent and the guilty.]
My wife says that I have more guts than brains for daring to write about the female experience in law firms. But here goes anyway.
Way back around the dawn of the current century, my friend Mark’s law firm proudly noted that 50% of their lawyers were women, including at the partnership level. The partners patted each other on the back and congratulated themselves for being ahead of the times.
To their credit, the reason that they had so many women at a time when that was unusual in private practice was that they always hired the best candidate. Being located outside of downtown Toronto, Mark’s firm was less attractive to many of the top men who had stars in their eyes about making it big on Bay Street. Some of the top women, on the other hand, factored in things such as work/life balance with an eye toward their future family life, and found Mark’s firm to be a good choice.
I myself have personally hired and supervised many female lawyers and observed and worked with many others in different practice areas. I believe that my experience, and the stories that I heard from Mark, qualify me to write about the female experience. (This would be where the ‘more guts than brains’ thing shows itself.)
Despite its auspicious start, not enough women stuck with Mark’s law firm over the long-haul and the percentage of female partners at the firm eventually slipped well below 50%.
The first inkling that I had that it may be tough to be a woman in the profession occurred many years ago. Back around the early 1990’s, downtown firms had started providing paid maternity leaves or “top-ups” for their female lawyers, and Mark’s management team put together a modest proposal for their firm to offer something along these lines.
Mark’s Managing Partner presented this proposal to the partners. It did not go over well. He told me that one partner said, “let me get this straight. Those of us who come to work every day are not earning enough (author note: Mark tells me that they were never earning ‘enough’) and you want us to earn even less so that we can pay people who are not working. You are all insane.” And that was pretty much the end of that idea.
Although Mark’s firm was not able to attract women to their firm by offering paid maternity leaves, it was still seen as a good choice by many women, primarily for work/life balance. And still many of them left. Left to other firms. Left to go in-house. Left to government. Left law completely. And all despite having more reasonable billable hour targets than downtown. So why?
One of the problems that I see is that women often leave the private practice of law because they are treated more or less the same as men when it comes to billable hours and client credits. And as the old saying goes, ‘equal’ is not the same thing as ‘fair’ when the circumstances of each person differ significantly.
Now let me pause here to acknowledge that quite apart from this one issue, one would have to suspend disbelief and set aside all the realities of the ‘old boys club’ and the negative culture that it creates for women to believe that the issue of ‘equal’ vs ‘fair’ in this respect is the only thing driving women out of the profession. Space simply does not permit a full discussion of all of the other factors, although as a starting point for a greater discussion, I tend to believe the many women who say that law firms greet men with an assumption of superiority and excellence, and that women have to work twice as hard to disprove the notion that they are second best. However, let me get back to my narrower point.
If one starts with the proposition that, in this day and age, many women still assume a disproportionate share of childcare, family, and household responsibilities, then ‘fair’ might involve some considerations that ‘equal’ does not quite cover.
For example, it continues to make sense to some firms that if lawyers are normally considered for partnership after seven years, a woman who has had two maternity leaves of one year each will be considered for partnership after nine years. Men and women are treated the same, but then again, a much smaller percentage of men take paternity leaves. And those who do are still sometimes ridiculed by those who continue to actively buy into and perpetuate the old boys club. Of course, women have it even worse: If they take a lengthy maternity leave, what type of professional are they? And if they don’t, what type of mother/person are they?
It also makes sense to some firms that lawyers (regardless of gender) who bill two thousand hours a year are more deserving of compensation and advancement than lawyers who bill fifteen hundred hours. All that matters is that the hours be billed and collected. This can also appear to be perfectly reasonable when applied equally to all genders. Except if my proposition about who is assuming more domestic responsibilities is correct, there will be more women who are earning less and not advancing in their careers.
Mark’s firm had one Managing Partner who put forward a number of theories about why the firm had to become more profitable and how to do it. Unsurprisingly, all of his theories were variations on a theme, and that theme was that everyone should work harder and bill more hours.
For example, he argued that since one single mom in the firm could bill 1,800 hours, there was no excuse for other single moms not to do the same.
Another one of his theories was that if they could replace the lawyers who were only billing 1,400 hours with lawyers who could bill 1,800 hours, the partners would make a lot more money. That might have been true, in the short term at least.
This same Managing Partner put forth the idea that he would be happy to hire second rate legal minds if they could bring in enough business. With his singular focus on bringing in business and billing hours, he tended to overlook issues such as the quality of the work being done and possible padding of dockets. The long-term effect on the firm’s reputation and brand was not uppermost in his mind.
If someone countered with the idea that the lawyers billing 1,800 hours were either single or had stay-at-home partners or partners with nine-to-five jobs, and the lawyers billing 1,400 hours were often women with childcare responsibilities, he would revert to his favourite example of the one single mom at his firm who billed a tonne of hours (but whose children perhaps had less parental time than most), or perhaps he would refer to another high-billing woman who just happened to have family support in the form of babysitting grand-parents, or a third who had a stay-at-home husband. Again, they were treating everyone equally. They were certainly not holding their female lawyers back. They just had the wrong female lawyers.
It always seemed to Mark that if the firm went out of its way to be supportive of the top tier women they were able to recruit while they had their young families, as the kids got older the women would ramp up their hours and would show the firm the same loyalty that the firm had shown to them. Mark never really got to test that theory because by the time their kids were older, many of them had moved on.
Now I suppose that the truth of the matter is that unless we embrace the idea that the childcare burden should be shared throughout all of society, these issues will remain with us and private employers will always decide that the cost of supporting young families is not for them to bear.
If that is how law firms are going to continue to be, they should at least be transparent about it and tell young women (and for that matter, men who want to share family responsibilities equally with their partners or – gasp – actually assume the lion’s share), that traditional law firms are not for them.
Then at least these crazy folks who want to practice law in a private firm while working a realistic number of hours will be on notice that they have to find a firm that shares their values or set up their own. It is well past time for the traditional law firms to stop pretending that they care about family life, work/life balance, and mental health. Frankly, it is a lot of nonsense.
There, I said it. Now all that remains is to see if women will forgive me for appropriating their content and if Mark’s partners will be mad at me for spilling the beans.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.