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We’ve come a long way, baby.  Sort of.  In 1970, women were not quite 9% of law students nationwide.  Now, we are almost half of all law students and law graduates, yet we represent only one-third of all lawyers and fewer than 20% of the partners in law firms and general counsel for Fortune 500 companies.  In fact, according to Susan Smith Blakely, author of Best Friends at the Bar:  What Women Need to Know about a Career in Law, 46% of women leave the practice of law mid-career.  So how far have we come, really?

Blakely, a recent speaker at Marquette University Law School, and others suggest that women are leaving law not because they don’t like the work, not because they can’t handle a trial or structure a deal, not because they can’t bring in clients.  They leave because of the perennial work-life struggle:  practicing law, particularly in a law firm, and raising a family just don’t seem to mesh well.  Women lawyers more than men are the ones who try to arrange flexible work schedules or work part-time or consciously remove themselves from the partnership track (by becoming staff attorneys, for example) in an attempt to maintain a reasonable balance between work and home.  Going on the mommy track, though, has had significant consequences for women.  They are paid less, viewed by others as less serious about their careers, and less likely to make partner, if indeed they stay in the field at all.   

To Blakely, there is no reason for the 46% “drop out” rate.  In her view, women can have satisfying careers and satisfying personal lives – it’s just a matter of realistic expectations and planning.  It’s not the men, she says, that are keeping women out of law; because of women’s failure to have realistic expectations and to plan their career choices accordingly, they are keeping themselves out of law.  Her book Best Friends at the Bar helps set realistic expectations and provides advice to women law students and young women lawyers on planning their careers in law.  And “planning” is a key word.  Women maybe more than men need to be more deliberate about the choices they make as they leave law school and head into practice.  One of Blakely’s points:  don’t buy into the male stereotypes of “success” in law practice.  Becoming partner at a law firm is not necessarily the pinnacle of success.  Lawyers practice in a wide variety of settings, and some don’t practice law at all in the traditional sense, and in each of those settings, there is “success.”  But Blakely also cautions that women need to accept that law is still an “old boys’ club,” and that women need to be aware of that culture and understand how it works.  Change takes time.

One place where women’s relative absence has important consequences for change – or lack of it – in law firms is women’s under-representation on law firm governing committees.  A recent study by the National Association of Women Lawyers (NAWL) and the NAWL Foundation explains, “This is the level of management at which decisions are made regarding firm policy, . . . compensation, billable hour requirements, elevation to partnership, [and] prospects for part-time or time-off policies, all of which set the tone for overall firm culture.” NAWL, Report of the Fifth Annual National Survey on Retention and Promotion of Women in Law Firms 19 (Oct. 2010).  According to the NAWL study, more than 10%  of firms say they have no women on their highest governing committee, 40% have one woman, and 30% have two; thus, as the study notes, “[M]ore than 80% of firms have at most two women members of  their highest governing committee.” Id. at 18 (emphasis in original).  Including more women on these committees would likely improve chances that policies that are adopted would be more responsive to women lawyers.  All it might take is three women on such committees.  As one study of corporate boards of directors has noted, three seems to be the number that changes the dynamics:  

The magic seems to occur when three or more women serve on a board together. Suddenly having women in the room becomes a normal state of affairs. . . . [H]aving three or more women on a board can create a critical mass where women are no longer seen as outsiders and are able to influence the content and process of board discussions more substantially.

Vicki W. Kramer et al., Critical Mass on Corporate Boards:  Why Three or More Women Enhance Governance:  Executive Summary 3 (2006).  Recently, Dahlia Lithwick, a legal columnist and senior editor at Slate, noted in a talk in Milwaukee at the Association for Women Lawyers’ Women Judges’ Night, that three seems to be the magic number for the United States Supreme Court.  Lithwick has covered the United States Supreme Court for a number of years and observed that the addition of Justice Elena Kagan, a third woman of the nine, has indeed changed the dynamic on that bench. 

While changing the structure of practice is important, it is not the only change needed to bring women lawyers – indeed, any working woman – full equality.  Early feminists thought that society would change as women began infiltrating and advancing in the workplace.  They believed there would be more equality both at work and at home.  In fact, we know this has not happened.  While large numbers of women – most of them with young children – are working full-time, they are also working a second shift at home, being largely responsible for both household tasks and child care duties.   Women who want to get to the top of their profession will need to make more sacrifices than men to get there, a point also made by Sheryl Sandberg, chief operating officer at Facebook.

Blakely says she is writing another book, one for law firms on the things they can do to help retain and advance women in law.  This is a good thing.  But as Anne Weisberg said, “You can’t solve an institutional problem with . . . individual accommodation[s].”  Joan Williams & Cynthia Calvert, Balanced Hours:  Effective Part-Time Policies for Washington Law Firms, 27 (2d ed. 2001) (quoting Anne Weisberg, Catalyst, Women in Law:  Making the Case, 18 (2001)).  What really needs to be written – or rather, rewritten – is the underlying societal structure that defines professional success in terms of someone with little connection to home.  What we should want is not how to fit women into the men’s world of law, but to change that world so it’s more hospitable to women and to men who choose to have lives outside of the office.  Much like our sisters who were the first to enter male-dominated law schools and law firms in the 1960s and 1970s, enduring much to pave the way for our entry, we must now commit to pushing for change that will not only advance women in law, but advance humanity in the profession.