January 21, 2020 Feature

Broken Rungs on the Career Ladder: A New Analysis of Problems Encountered by Women Lawyers in Private Practice

By Cynthia L. Cooper

After nearly three decades of law practice, Washington, D.C., trial attorney Beth Wilkinson left her partnership in one of the nation’s large law firms in 2016 to co-found Wilkinson Walsh & Eskovitz, a D.C.-based litigation firm. “I was definitely aware of the limitations of BigLaw. It was definitely harder for most women. I thought we could do it better, or at least differently,” says Wilkinson, a trial lawyer with a strong business book as well as—by her description—a working mother.

“All these big firms focus on diversity, and I believe they care about it,” she notes. “People kept telling me it’s going to get a lot better. But the truth is, there weren’t a lot more women partners percentage-wise after 30 years than when I started. So I thought I could complain or I could try and do something differently.”

Wilkinson contends that an emphasis on billable hours does not adequately reward lawyers who bring excellence, experience, and efficiency to a practice. So her firm uses an alternative system of billing and compensation.

In addition, Wilkinson’s firm seeks to accommodate “real-world challenges,” allowing flex-time and work-from-home arrangements. The three-year-old firm now counts 50 percent women among its 45 lawyers and five women partners of 12 total.

Wilkinson’s midcourse adjustment reflects the experiences of many women at the nation’s largest law firms. They’ve gone on the associate roster at 45 percent of the total for more than a quarter-century, but their ranks thin dramatically as the years go by.

The statistics reveal a disheartening picture. In 2018, women comprised only 19.5 percent of equity partners and 30.5 percent of nonequity partners in the nation’s 200 largest firms, according to an annual survey by the National Association of Women Lawyers (NAWL), based in Chicago. That’s only a 3 percent increase of equity partners from 12 years earlier—“a sluggish upward trajectory,” NAWL concludes.

At this rate, women will achieve gender parity in equity partnerships in 160 years, according to a 2015 analysis by The American Lawyer in its Special Report: Big Law Is Failing Women.

Male partners also make substantially more money than women do. Men earned $959,000 on average, compared to $627,000 for women partners, according to the Partner Compensation Survey of 1,390 law firms released in 2018 by legal search firm Major, Lindsey & Africa. This 53 percent gap is significantly wider than the differences calculated in four previous surveys since 2010.

Cases of gender disparity in BigLaw have also found their way into legal actions. In the last five years, Sanford Heisler Sharp, LLP, which has made a niche practice in the area, has brought more than 40 cases against 30 BigLaw firms, according to David Sanford, chairman and co-founder.

He says a majority of these cases involve women partners seeking pay compensation, typically involve origination credit, and tend to resolve quickly and confidentially. “Most are great firms with talented people,” Sanford says. “This has been a male profession, and males are in a power position. It’s very difficult to give it up.”

Searching for Weak Links

Now, robust new research has tested the various rungs on the BigLaw career ladder to identify breaking points for women and to offer proposed solutions. Walking Out the Door: The Facts, Figures and Future of Experienced Women Lawyers in Private Practice was released in fall 2019. It is one of four studies conducted by the ABA under the Presidential Initiative on Achieving Long-Term Careers for Women in Law, which was kicked off in 2017 by then-ABA president Hilarie Bass with the participation of the Commission on Women in the Profession (CWP).

The study was undertaken in collaboration with ALM Intelligence, based in New York City. Reports on the three additional components of the Presidential Initiative will be released in the coming months to round out the picture—one traces the career steps of women and men law graduates over time; two will share the results of focus groups across the country (one with lawyers from private firms and another specifically with experienced women of color).

“I think the [Walking Out the Door] report will open a lot of eyes,” says Bass, who in 2018 founded the Bass Institute for Diversity and Inclusion in Miami after 35 years in BigLaw to devote her full-time energy to the issue.

“You have a lot of managing partners trying to respond to these diversity surveys from top clients, scratching their heads, and saying, ‘What happened to all the women?’ So much of the focus has been on the pipeline. We have all of these women coming in, but people have been asleep at the switch. They are all coming in, but they are all going out the door.

“One of the things the study will do is make it a reality for managing partners who are prepared to look at it and say, ‘Oh my, this really is an issue,’” Bass adds.

The research for the report consisted of a comprehensive survey that looked at how women and men lawyers at senior levels experience the practice of law in the nation’s largest firms. “The decision to undertake the study was to confirm with data the reasons why women were choosing to leave the practice,” Bass notes.

“Gender bias continues to impact women lawyers,” she continues. “In category after category, metric after metric, women have a very different career trajectory and a very different career experience.”

Lawyers at NLJ 500 law firms with 15 or more years of experience were invited to participate. The survey instrument, sent out in 2018, asked about everyday experiences that contribute to success for men and women lawyers as well as perceptions about why women stay at or leave private firms. Participants were also asked to assess the success of gender parity measures in their firms.

Researchers were able to analyze responses from 1,262 individuals—70 percent women and 30 percent men. Of the respondents, 53 percent were equity partners and the rest were nonequity partners or counsel. Twenty-eight managing partners participated.

The results show that experienced women and men do find satisfaction in some of the same areas. Both men and women enjoy the legal work that they do—for example, all rate positively the intellectual challenges, substantive area in which they work, and legal tasks they perform.

Where men and women diverge is in their satisfaction with how they are treated in the firm—women express decidedly more discontent with credit, compensation, evaluation, transparency, possibilities for advancement, and their firm’s commitment to parity.

On a day-to-day level, women also reported negative encounters that men did not—being subject to sexual harassment, receiving demeaning comments, finding themselves mistaken for a lower-level employee, feeling that they have less access to business development or promotion opportunities, and being perceived as having less commitment to their career. The report finds the gender differences “both striking and alarming.”

Why Women Turn Away

Men and women generally agreed on some of the reasons why women depart. Both identify caretaking responsibilities, demands for billable hours, stress, and the desire to move to a different profession. But women, to a substantially greater degree than men, also pointed to other causes for the exit of women: marketing demands, limited opportunity for advancement, and compensation concerns.

“On so many aspects of the building blocks for success, women have more negative experiences than men,” says Stephanie A. Scharf, coauthor of Walking Out the Door and chair of the ABA’s CWP.

Scharf, a former partner at two BigLaw firms, says she had positive experiences during her tenure but watched other women struggle. “I spent 25 years in BigLaw, including raising two children, so I certainly understood why a lot of my women colleagues basically left in very large numbers compared to the men,” says Scharf, today a founding partner of the women-owned firm Scharf Banks Marmor LLC in Chicago.

The research finding that most fascinated Scharf has to do with parenting. “I was surprised—I should not have been surprised—but I was surprised by the impact that childcare has on the careers of women lawyers,” Scharf says.

In delving into childcare commitments, the survey shows that experienced women lawyers, far more than their male counterparts, bear the burden of overseeing the care of children. One finding shows that 35 percent of women said that arranging childcare is their full responsibility, while a mere 1 percent of men responded similarly.

“There are things that law firms can do to ameliorate that impact, but most are not doing it,” Scharf says. “That is a huge burden that many women carry, and it really affects the course of their career.” Seventy-five percent of women believed that paid parental leave, the ability to work from home, and part-time work policies are central to advancing senior women, the survey found. Walking Out the Door specifically recommends that firms address family responsibilities by rejecting the stigma that can attach to flex-time or part-time policies and removing barriers to advancement of lawyers who use them, as well as supporting childcare programs and concierge services.

The survey also probed the perceptions of lawyers on the efforts of firms to address gender disparity. Again, men and women had starkly differing responses, notes coauthor Roberta (Bobbi) Liebenberg, who previously worked with Scharf on a 2015 study of gender differentials between first chairs at trial.

A former chair of the CWP, Liebenberg worked at BigLaw until age 50 before leaving to set up her own firm for eight years and then joining the Philadelphia antitrust firm Fine Kaplan and Black, R.P.C., where she is now a senior partner.

When asked about the gender-parity efforts at their firms, managing partners and senior men had a much more rosy view than women. “There is just this huge disconnect,” Liebenberg says.

For example, 88 percent of managing partners and senior men believe that gender diversity is a priority at their firm compared to 54 percent of women. “If people at the top think that they are doing a great job and they’ve checked off all the gender and diversity boxes for their firm, and, in fact, they are not succeeding—especially in terms of how women and diverse lawyers are feeling—then this is another issue that should be a huge concern for law firms.”

Extending the Discussion

Focus group research extends the study by engaging experienced lawyers in deeper conversations. A report on findings from a dozen focus groups with over 100 people with 20 years or more of experience in private firms will be released this summer, according to Joyce Sterling, a professor of law at the University of Denver Sturm College of Law, who guided the project. Groups were convened in Boston; New York; Washington, D.C.; Chicago; San Francisco; Houston; and Miami.

The issue that rose to the top: compensation. Women participants in the focus groups repeatedly pointed to inequitable pay, promotion, and origination credit as the downsides of their practice.

“A number of people said to us that they’d been promoted to equity partner, and at that point they could go look at what everybody was earning,” Sterling points out. “And they suddenly realized that they were making significantly less than men who weren’t even partners. So, of course, as you can imagine, it was very unsatisfying to them.”

One woman described how three men were granted promotions while she and two other women on the same track were not. Confronted, the managing partner explained that the men had families to support.

“A lot of this may be classified as implicit bias,” Sterling says. “The big firms all talk about, ‘Oh yes, we want to have more women, more women should be on the compensation committee, and so on.’ But they actually don’t know how in operation to make it a priority.”

Paulette Brown, past president of the ABA and a partner at Locke Lorde LLP, is guiding a study that will report on focus groups of women of color in law. “When a study of long-term careers of women in law was announced, I knew the experience of women of color was going to be different,” says Brown, who will be preparing results from eight focus groups convened in New York, Los Angeles, Atlanta, and Chicago for a fall release.

Where to Go Next

Walking Out the Door is unique, Liebenberg says, because it presents specific recommendations in addition to the data. “If people actually want to make sure that women and diverse lawyers advance and succeed, there has to be a clear commitment, there have to be benchmarks and goals, and there has to be accountability for the failure to do so,” Liebenberg observes.

“This is not rocket science,” she adds. “The most important solution is strong leadership from the top.”

For her part, Bass is hopeful that BigLaw firms will step up. “Clients are demanding diversity on their teams, and they’ve become much more sophisticated about it. You can’t be competitive in 2020 if you are leaving 50 percent of the talent at the door,” Bass says. “I do believe we are at an inflection point.”

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By Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist in New York with a background as a practicing lawyer.