By Ms. JD Editor • May 28, 2013•Firms and the Private Sector
Editor's Note: Has Women Lawyers' Progress Stalled? was originally published in The Legal Intelligencer and is reprinted here with the permission of the author.
By many measures, women lawyers have made great progress over the past several decades. Increasing numbers of women lawyers are reaching the highest pinnacles of the profession. For example, women justices now make up one-third of the U.S. Supreme Court. Also, more than 30 percent of federal and state appellate judges are women. Here in Pennsylvania, women represent two-thirds of the Superior Court, more than one-half of the Commonwealth Court and almost half of the Philadelphia Court of Common Pleas. Five of the 14 chancellors of the Philadelphia Bar Association since 2000 have been women.
Women lawyers are also making strides in the corporate sphere. Indeed, the number of women general counsel at Fortune 500 companies is at an all-time high, as their percentage has more than doubled since 1999 to more than 21 percent. Likewise, the number of women serving as law school deans has climbed above 20 percent.
The progress of women lawyers can also be seen in the ever-increasing number of women entering the profession. In 1970, women made up only 7 percent of law school enrollment. Today, nearly half of all law school graduates and 45 percent of all associates are women. Similarly, in 1970, just 4.9 percent of lawyers were women; now, women comprise almost one-third of the country's lawyers.
Unfortunately, however, notwithstanding the influx of women into the profession, they still remain grossly under-represented in positions of real power and influence in law firms. Distressingly, the percentage of women equity partners at the country's largest law firms has remained static for a number of years, stubbornly failing to cross the 16 percent threshold. Moreover, women constitute just 4 percent of the managing partners at the 200 largest U.S. law firms. Only 20 percent of the members of those firms' management committees are women. In 11 percent of these firms, there are no women on the management committee, and 35 percent have just one woman on their management committee.
There are several disturbing trends that have impeded the progress of women at law firms. Most notably, as reflected in the "Seventh Annual Survey on Retention and Promotion of Women in Law Firms" by the National Association of Women Lawyers, while women have historically fared far better in single-tier firms, the vast majority of law firms are now utilizing two-tier and mixed-tier partnership tracks. Also, in mixed-tier firms, a disproportionate number of women are placed in the "fixed-income equity partner" designation. Women also fill many of the non-equity partner, counsel and of counsel positions at law firms. The increasing use of staff attorneys by firms is also troubling, because these positions, which are overwhelmingly held by women, offer lower pay, less job security and no real prospects for advancement. As a result of all of these trends, there is an inverse pyramid for women in law firms. The higher up you look at each level of a law firm, the smaller the percentage of women you will find.
The statistics for women attorneys of color are particularly sobering. They comprise only 11 percent of associates and 2 percent of law firm equity partners. They have the highest rate of attrition, with 86 percent of women associates of color leaving their law firms before their seventh year. A series of "Visible Invisibility" reports by the American Bar Association's Commission on Women in the Profession confirms that women attorneys of color face unique obstacles that have greatly impeded their progress, including inadequate mentoring, inferior work assignments and exclusion from formal and informal networking opportunities. In addition, minority women partners are rarely represented on important firm committees, such as the executive or partner compensation committees.
Hillary Clinton, who served as the first chair of the ABA's Commission on Women in the Profession, observed in a groundbreaking report in 1988 that the increasing number of women lawyers would not, in and of itself, ensure that women would advance and succeed in the profession at the same rate as their male counterparts. As shown above, an examination of the status of women in the profession over the past 25 years confirms that she was prescient.
The progress of women attorneys has also stalled with respect to compensation. At the associate level, although salaries for male and female lawyers are roughly equivalent, women associates receive only 40 percent of all discretionary bonuses even though they constitute nearly 45 percent of the associate pool. Numerous state and national surveys have confirmed that the pay disparity between male and female lawyers increases as lawyers become more senior. Indeed, the largest gap is between male and female equity partners. This shortfall is substantial and can add up over the course of a career to millions of dollars. Women attorneys of color are particularly hard-hit by the pay gap, as they are paid less than men as well as non-minority women.
The gender gap in compensation is closely correlated with the under-representation of women in positions of true power and leadership in law firms, because the most influential law firm committees are often composed of the firm's most highly compensated partners. Given this dynamic, it is perhaps not surprising that 70 percent of the country's largest law firms have either no women or just one woman on their partner compensation committee. The lack of a critical mass of women on partner compensation committees, in turn, results in decision-making by those committees that adversely affects women's compensation and perpetuates the gender pay gap.
The pay disparity experienced by women partners was the subject of a landmark 2010 study undertaken jointly by the ABA Commission on Women in the Profession, the Minority Corporate Counsel Association and the Project for Attorney Retention titled, "New Millennium, Same Glass Ceiling?" That study examined how law firms distribute billing origination credit and how that distribution affects compensation and the advancement of women lawyers. Of the 700 women partners who responded to the survey, a staggering 55 percent complained that they had been denied their fair share of origination credit. Even more shocking, 30 percent reported that they were subject to intimidation, threats or bullying in allocation disputes. Respondents also reported that their firms did not provide women with equal opportunities to participate in client pitches. Even when they participated in pitches, they often did not receive a proportionate share of the origination credit or other financial credit for their contribution in landing the new client or matter. Likewise, the study found that women received far fewer internal firm referrals and cross-marketing opportunities.
Although law firms differ in their partner compensation criteria and processes, origination credit, revenue collection and billable hours constitute the three most important factors influencing partner compensation decisions. Serving on the recruiting, diversity, associate development or pro bono committees of a firm rarely plays any role in partner compensation. However, these are the very committees on which women generally serve.
Women lawyers' efforts to achieve higher compensation have also been derailed by the fact that very few firms have formal client succession policies. As a result, it is extremely common for individual partners to determine on an ad hoc, unilateral basis who will inherit the client origination credit from them when they retire, with little or no oversight or involvement by the firm or even by the client itself. In most cases, male partners simply bequeath their clients to their male protégés, and women partners who helped maintain or grow the relationship with the client are excluded from the opportunity to inherit the client relationship and thereby move up the compensation ladder.
Study after study has confirmed that gender plays a major role in how women lawyers fare in billing credit and client succession decisions and helps explain why almost one-half of the 200 largest law firms in the country have no women among their top 10 rainmakers. The National Association of Women Lawyers has reported that women equity partners receive only 75 percent of the amount of the origination credit ascribed to their male colleagues, and women partners represent only 16 percent of the partners credited for at least $500,000 in business.
The slow rate of progress of women lawyers in attaining equity partnerships, firm management positions and compensation commensurate with that of their male counterparts can be attributed in part to implicit bias. Implicit biases are unconscious biases that everyone has, both men and women, and affect what we notice about people, how we interpret their behavior and what we remember about them. Social psychology research teaches us that these biases stem from everyone's natural desire to associate with those who look, act and think like them and share similar characteristics and backgrounds. As a result of these implicit biases, women often have to demonstrate greater levels of competence and proficiency and are held to higher standards than their male colleagues.
Implicit bias can affect the compensation and advancement of women lawyers. A few examples illustrate how this plays out in a law firm. Women who are assertive and act decisively are often criticized for being unduly aggressive. Likewise, women who tout their own achievements in their efforts to be considered for partnership or to attain higher compensation are frequently viewed negatively and are considered too boastful or self-aggrandizing. Conversely, men who brag about their own achievements or who act aggressively are viewed positively and often praised for their ambition and drive.
Women lawyers with children face an entrenched "maternal wall" bias. Negative assumptions are made about both their competence and commitment. It is not uncommon for women with children to receive more negative evaluations than they received before having children. Also, they tend to receive less significant and challenging assignments, which impairs their ability to advance in their firms.
Despite extensive efforts by law firms to ensure that women lawyers are advancing and succeeding, the harsh reality is that the slow rate of progress for women contributes to their continuing high rate of attrition from law firms. This attrition hurts not only individual women, but also their firms, which have made a substantial investment of time and resources in hiring and training their women lawyers. More and more corporate clients are demanding diverse legal teams, and firms will lose a competitive advantage if they do not devise effective solutions to retain their women lawyers, keep them on the partnership track and promote them to leadership positions.
In order to stem the high rate of attrition and to enable women lawyers to make real gains in compensation and firm leadership, the ABA's Gender Equity Task Force and the Commission on Women in the Profession are set to release several important new publications in August. They will include model policies and best practices that law firms can implement to make their compensation decisions more equitable and to increase the number of women among their top rainmakers. In addition, the written materials will include practical steps women lawyers can take to negotiate more effectively for compensation, as well as concrete strategies that they can utilize to maximize their leadership potential. Information about these materials can be found at www.americanbar.org/groups/women.html.
Clearly, the slow pace of progress of women lawyers is unacceptable. In order to change this paradigm, law firms will need to make significant structural and governance changes that demonstrate that they are truly committed to gender equality — mere lip service will not suffice. Also, women lawyers will need to take charge of their own careers and not be reluctant to seek power and influence in their firms. It is only when women achieve a critical mass in law firm leadership that we will finally see meaningful progress for women lawyers. Our profession is dedicated to the achievement of justice, and thus the attainment of gender equality must be a top priority.
Roberta D. Liebenberg is a partner in Fine, Kaplan and Black in Philadelphia. She concentrates her practice in complex commercial litigation, particularly class actions and antitrust litigation as well as white-collar criminal defense. She is chair of the American Bar Association's Task Force on Gender Equity and is the former chair of the ABA Commission on Women in the Profession.