The Horrible Conflict Between Biology and Women Attorneys

Editor's Note: This article was written in November 2016, published on Law360 and highlighted on Above The Law.

Last week, I had the wonderful opportunity to participate in a radio program, Radio Entrepreneur - On the Record, graciously sponsored by O'Brien & Levine Court Reporting. I went on air as a millennial consultant who is committed to the retention and advancement of women attorneys in the multigenerational firm. I should have been prepared for the inevitable question that follows that bold statement, so why do women leave their firms? Unfortunately, I wasn't prepared to answer in that forum.

My response? Frankly, I don't know.

The fact is, I do know. At least, I have a well-researched opinion. However, without having practiced a diplomatic response, I was wary to respond in a forum available for public consumption because a "non-strategic" answer is destined for failure. Take a step in one direction, and it is perceived as blaming the law firms. Take a step in the other direction, and it is perceived as blaming the women. I wasn't prepared to ascribe responsibility or alienate either audience. Further, I was not prepared to shoot from the hip on a question that is of fundamental importance to our industry. (For context, women have comprised around 47% of graduating law school classes since 2000, and yet women represent only about 18% of equity partners nationwide.)

The real answer is that there is not a blanket reason. It is a straightforward question that has a nuanced answer, entrenched in institutional, social, and personal constructs. It is a question that begs the response, how much time do you have? Additionally, the answer is tangled in gender. Nearly 80 percent of all associates leave large law firms in year five and, of those remaining, 55 percent of midlevel attorneys do not expect to be working in a law firm in five years. So, how do you effectively tease out gender-specific reasons?

Furthermore, many women do<\/g> ascend to the top! I would be remiss to discuss the reasons women leave their law firms without acknowledging the achievements of the women who have paved the path to partnership.

The frustration with my inarticulate response and desire to respond more strategically in future conversations prompted me to ask everyone I came across last week for their opinions. Fortunately, I had a big week. I crowdsourced the best available insights, combined with information from my graduate independent study based on Lauren Rikleen's book, Ending the Gauntlet: Removing Barriers to Women's Success in the Law, and continued research, and have infused them into the framework of the top two reasons lawyers leave their law firms, regardless of gender.

The top two reasons attorneys leave their law firms are:<\/g> 1) unsustainable billable hours and work/life considerations, and 2) a limiting culture. The following encompasses the overarching, gender-specific reasons that women leave private practice, and is in no way intended to discuss the details and nuances of implicit bias, individual career goals and<\/g> preferences, or practice areas. It is intended as a 30,000-foot view of why women leave law firms, from a generationally informed millennial perspective.

I. Unsustainable Billable Hours And Work/Life Considerations

1) The Horrible Conflict Between Biology and Women Attorneys in Private Practice

In my conversations with managing partners and other firm decision-makers, the best I have heard the issue described is this: "there is a horrible conflict between biology and women ascending in private practice." As this attorney described, for women who decide to have children, the biological window for motherhood directly conflicts with the career window requiring the biggest investment of time and energy.

The average age of a law school graduate is 27. The average path to partnership takes ten years. Therefore, the investment of time and energy required to rise through the ranks in a private law firm must be made between the approximate ages of 27 and 37.

As young associates, attorneys are expected to produce heavy billable hours and learn as quickly as possible to produce a foundational competency in their practice area. The young associate blossoms into a competent senior associate approximately four to six years into practice, corresponding to ages 31-33. At this time, associates are then encouraged to strategize their business development efforts to demonstrate continued commitment and potential for further contribution to the firm. Accordingly, an increased pressure for growth and renewed expectation for commitment occurs in the senior associate stage, which takes place from the age of 31-33 until the attorney makes partnership<\/g>, around age 37.

From ages 31-35, female fertility drops by about 3 percent per year and then accelerates thereafter. As David Adamson, the president of the American Society for Reproductive Medicine explains, "[t]he average 39-year-old woman has half the fertility she had at 31, and between 39 and 42, the chances of conceiving drop by half again."

Accordingly, women are biologically encouraged to bear children at the same time that their careers require the most commitment of time and energy. During the time that women are out of the office on maternity leave, their male counterparts continue to move ahead in billing and learning and demonstrating their commitment to the firm. The effect compounds with additional children. Women attorneys then find themselves in a constant game of "catch-up" as they work to realign with the progression of their male counterparts, also while transitioning to their new role as a mother and all of the attendant, non-work responsibilities associated with that title. The feeling of treading water, while male and non-mother colleagues get the better assignments and continue to climb, produces a sentiment that it is no longer worth the effort. As a result, many mother-attorneys leave their firms.

However, this is not the end of the story. Not all women are able or wish to bear children. And, many women leave their law firms before family considerations are on the table, or for reasons completely unrelated to them.

2) Desire For The Life Side of the Work/Life Balance Equation

As one woman attorney who has not yet left her firm, but is considering it, describes, "I do not have a family, I simply want the time to work, sleep, and go to the gym, and I don't have it. I'm four years in and feel that I should at least have the time and flexibility to care for my well-being."

As another woman attorney who has left her firm, moving to a corporate position, describes, "I billed 2,600 hours last year. I never want to do that again."

I don't see this issue as related to gender. It is well understood, and so I will not belabor it here. Many attorneys leave their law firms because they want more time for life outside of work. Many<\/g> more leave due to cultural considerations.

II. The Limiting Impact of Cultural Components.

1. Headwinds.

There exists an old boys network in law. An old boy network is defined as, "an informal system of support and friendship through which men use their positions of influence to help others who went to the same school or college as they did or who share a similar social background." I do not say this with frustration or any kind of chip. It is simply a fact. There are a number of studies, articles, and resources discussing how this emerges in the law firm context. The two major fallout effects relate to assignment delegation and social outings.

a. Assignment Delegation & Sponsorship. First, it is well-researched and reported that the old boys<\/g> network results in better deals and cases being assigned to male counterparts. As a result, women regularly receive deals and cases that are inferior in terms of challenge, client exposure, or client relationship and must actively seek the better<\/g> assignments. This is one type of headwind for women attorneys.

To address this, young women are encouraged to seek sponsorship in their firms as a way to create their own version of the old boys<\/g> network and ascend more swiftly. The term "sponsorship" has gained popularity over the past few years. Sponsorship is an active form of mentorship, wherein the sponsor goes to bat for the sponsee and actively pulls the sponsee up the ranks. However, with a ratio of 1 woman in 5 senior attorneys, it leaves women with few options to seek female sponsorship. Further, it encourages competition amongst associate women for the attention of the one senior female attorney.

I discussed this concept with the Chief Marketing Officer of a global firm a couple weeks ago, and she remarked that she did not view this as a gender issue. I can see her point. After all, gender is not the only trait or interest to have in common with someone. She went on to explain that many women attorneys in her firm seek informal mentoring and sponsorship from male attorneys at the firm, and it seems to work just fine. I hope this is widely adopted at other firms.

b. Social Outings. Second, the old boys<\/g> network impacts social outings. Please note that this is anecdotal, from stories I've heard from women attorneys who currently practice in private law firms. According to their accounts, their male colleagues are consistently asked to partake in rounds of golf with clients and other such outings, typically revolving around sports, while the women are not. These social outings provide opportunities to develop deeper professional relationships with senior attorneys, while simultaneously providing exposure to clients. They are critical for firm ascension. And yet, from the accounts of many women attorneys, they must make an awkward ask to be included, while it is expected that their male counterparts will join. This is a second<\/g> type of headwind for women attorneys.

2. You Can't Be What You Can't See.

As noted above, only 18% of equity partners are women. Through many conversations with women attorneys over the years, I have heard that it is difficult to have the drive and unwavering commitment required to ascend when they don't have a visual of what their success will look like - they don't have role models.

By<\/g> role model, they mean a senior woman attorney who has made the job and life work for her and is now enjoying her success. Instead, I've heard sentiments like, "I wouldn't do it the same way," "if conforming who she is, as a person, is required for success, then I don't want to do that," and "I don't see anyone ahead of me whose life I want." All of these sentiments are different ways of saying, "I don't have a visual for success in my firm."

Without the visual of someone who they aspire to be, many women lose interest or feel defeated before even really trying to ascend. If they don't see it, it is hard to have the drive and unwavering commitment required to be it. So, they choose to pursue alternate routes with a more hopeful outcome.

Conclusion

Women leave their law firms for a lot of the same reasons that men do, many of which were not addressed in this article. But, there are some reasons specific to women that account for the proverbial leak in the pipeline.
 
Attorneys compete on hours and client development in law firms. Given the biological factor for women who choose to have children and the resulting disruption in their hours, these attorneys are incentivized to compete by developing business opportunities for the firm. According to the 2014 NAWL National Survey on Retention and Promotion of Women in Law Firms, women have not hit their stride when it comes to rainmaking and are<\/g> therefore not adequately competing on this metric.

Furthermore, while developing business can ensure that an attorney is valuable to the firm, partnership<\/g> makes the ultimate decision on the attorney's advancement. Women experience cultural obstacles on this front. They face headwinds with respect to assignment delegation and social outings as well as the difficulty associated with the limited ability to see a model for success.
 
These insights are a driving factor for my work. I believe that a firm's increased investment in talent management, specifically in developing business opportunities and growing mindfully to remove obstacles to advancement, addresses many of the reasons attorneys leave their law firms and therefore results in improved retention and engagement of women attorneys.
 
I hope this article provides the proper attention and detail in addressing a question of significance to our industry.