A Study into Women Leaving the Law

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

A Study into Women Leaving the Law

12/16/2019

 

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Judy Perry Martinez: It gives us concrete recommendations about what we can do as individual lawyers and as law firm leaders across this country and beyond in order to make sure that we are keeping this talent within our ranks.

 

Stephanie Scharf: We made a point to survey experienced women, experienced men and managing partners to see if they had the same view of what it meant to practice law in a firm.

 

Bobbi Liebenberg: Stephanie and I wanted to understand the factors and experiences influencing experienced women lawyers to remain or leave their law firms and whether as Stephanie said experienced women lawyers are being afforded the same opportunities to succeed as their male colleagues.

 

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from Massachusetts and no, this is not déjà vu all over again although I used to be the host of this show and haven’t been hosting it for the past year, I am here today filling in for Craig Williams, who is off in court. And I was the longtime host of this show; I now do another podcast called LawNext, which you can find at lawnext.com and by day I am a lawyer and publisher and editor-in-chief of lexblog.com.

 

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Well, although it’s been some 40 years since women have started entering the practice of law in large numbers and even though women make up as much as half of incoming associates each year, they still account for just 20% of equity partners at larger firms. Part of the reason for this is there is a particularly high rate of attrition for women in law even at advanced stages of their career.

 

So why is this and what can law firms do to counter this? To get to the bottom of this the American Bar Association and ALM Intelligence collaborated on a survey of women and men at NLJ 500 law firms. They recently published the findings of that survey in a report entitled “Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice”.

 

So today on Lawyer 2 Lawyer we are going to talk to the two attorneys who authored that study as well as the President of the American Bar Association. So let me introduce today’s guests.

 

First, let me introduce the President of the American Bar Association, Judy Perry Martinez. Over the past 35 years Judy has held various leadership positions with the ABA, including Chair of the Standing Committee on the Federal Judiciary, which evaluates all nominees to the federal bench. She is also an attorney with Simon, Peragine, Smith & Redfearn in the wonderful city of New Orleans.

 

Judy, welcome to Lawyer 2 Lawyer.

 

Judy Perry Martinez: Thanks Bob. I am delighted to be with you again.

 

Bob Ambrogi: Yeah, and you were recently on my other podcast, so it’s good to talk to you again.

 

And our next two guests are, as I said, the authors of this report, starting with Roberta Liebenberg, who goes by Bobbi and we will be calling her that on the show, is a partner at Fine Kaplan and Black in Philadelphia, where she focuses her practice on class actions, antitrust and complex commercial litigation and white-collar criminal defense.

 

Welcome to Lawyer 2 Lawyer Bobbi.

 

Bobbi Liebenberg: Thank you so much and thank you for looking and examining the study.

 

Bob Ambrogi: Thanks for being with us and I know we caught you coming right out of court, so really appreciate it.

 

Bobbi Liebenberg: Yes.

 

Bob Ambrogi: And Stephanie Scharf. Stephanie is a partner at Scharf Banks Marmor, LLC. She represents corporate clients and government entities in litigation and arbitration in a wide range of commercial disputes, class action defense, product liability and mass tort defense, insurance coverage for corporate policyholders and employment litigation.

 

Welcome to Lawyer 2 Lawyer Stephanie Scharf.

 

Stephanie Scharf: Thank you very much.

 

(00:04:58)

 

Bob Ambrogi: So Judy, let me start with you and maybe you can set the stage for us by giving us the background on how it came about that the ABA conducted this survey, got involved with the survey and what were kind of the goals and the mission of this.

 

Judy Perry Martinez: Bob, the ABA’s Commission on Women in the Profession has a long history of bringing issues to the forefront that they know are impacting the legal profession as a whole as well as the people whom we serve. And one of those issues is the number of women in the peaks of their careers who have for some time now been walking out the door, thus the name of the study that we are going to be talking about today.

 

And this has been an ongoing crisis in the legal profession, and as you noted, the numbers, when you look at them, just don’t add up to what we want the profession to be and that collective we is everyone in the profession, because we know if we don’t have the talents and the intellect and the commitment and the energy of women who are within our ranks because they are leaving to go elsewhere and not staying in practice, then we have a problem that needs to be addressed.

 

So in its wisdom the Commission on Women in the Profession during one of my predecessor’s years and service as President, Hilarie Bass, worked with Hilarie and they made it a priority to make sure that they were going to undertake this study on achieving long-term careers for women in the profession.

 

And what we know is that that study was made possible because of a terrific collaboration by ALM Intelligence with the ABA, and ALM did tremendous work in conducting the survey, which was the backbone or the foundation of the report. And what we also know is that this survey is — its brilliance is really in what it asked and how it delved deeply in order to go beyond the surface and understand what we needed to understand in order to again advance not only the careers of women, but also most importantly, to make sure that all of the talent that women bring to our profession is there for the benefit of the clients that we serve and the public.

 

Bob Ambrogi: Judy, before we turn to some of the specifics here and some of the findings and recommendations, as you read this report for the first time or for however many times, is there anything about it that particularly jumped out to you or surprised you about it?

 

Judy Perry Martinez: Well, I think the commonality of the findings is what’s so striking and I know we will get in to that in more detail with these two individuals, Bobbi Liebenberg and Stephanie Scharf who put over two years of work into this study to make sure that it was done in a way that would produce meaningful results that could be acted upon.

 

And I think that probably is the greatest takeaway that I have from this study Bob and that is that it not only produces the data to show us the path forward, but it also paves the path forward for us. It gives us concrete recommendations about what we can do as individual lawyers and as law firm leaders across this country and beyond in order to make sure that we are keeping this talent within our ranks.

 

Bob Ambrogi: I think as you said part of what struck me as interesting about this survey and reading through it were some of the questions that were asked and in the manner in which they were discussed.

 

Stephanie and Bobbi, I want to kind of turn to you about some of the specifics, but I wonder if either of you want to kind of start by giving us an overview of how you approach this and what your goals were in getting involved with this and conducting this survey.

 

Stephanie, can I start with you on that?

 

Stephanie Scharf: Yes. Well, Bobbi and I have done a number of studies together and I think we were struck by the fact that in the past many studies focused on bottom line statistics, percentage of women, percentage of men, what salary is being made, but there has never to my knowledge been a systematic national survey like this on what are the everyday experiences of men and women practicing law and how do those experiences result in very different outcomes over years of a career for women versus men.

 

(00:09:45)

 

So when we sat down to design this study and write the questionnaires, we were focused on what do we need to know and that’s why so much of the content has to do with what are your levels of satisfaction with different areas of practicing law, what are the kinds of experiences you have about obtaining success and promotion and salary and working with others, what we call the building blocks for success.

 

And we also wanted to make sure that we had a multidimensional view on what these experiences are. So we made a point to survey experienced women, experienced men and managing partners to see if they had the same view of what it meant to practice law in the firm. And I think that is one of the unique features of this study, that it’s multidimensional, it focuses on what happens in everyday experience and how does that result in different outcomes.

 

Bob Ambrogi: And Bobbi, the goal here is, I take it, was to be able to examine those everyday experiences in order to help law firms understand how to promote gender diversity. Is that a fair way to put it?

 

Bobbi Liebenberg: Yes, and I think I would add on to what Stephanie provided you, that the study was prompted by the fact that although women in their 30s and 40s comprise over 40% of all lawyers, by age 50 this percentage drops dramatically, with women over 50 making up to 27% of lawyers over 50 in law firms. So while the common assumption is that the majority of women lawyers leave their law firms during their childbearing years, which begins the drop off, our data revealed that far too many experienced women lawyers are leaving the legal profession when they should be in the prime of their careers in terms of compensation and leadership roles in their firms.

 

And Stephanie and I wanted to understand the factors and experiences influencing experienced women lawyers to remain or leave their law firms and whether as Stephanie said experienced women lawyers are being afforded the same opportunities to succeed as their male colleagues.

 

And we think that the departure of so many experienced women lawyers from law firms should be a cause for alarm for law firms, because it leaves them without a critical mass of experienced women who can participate, and for management and compensation committees, it causes a vacuum of potential role models and sponsors and it creates a dearth of women who can serve as first chairs at trial and leads on deal. And I think this is really important at a time when clients are increasingly demanding diversity in these roles by law firms.

 

So we think the business case for retaining and advancing experienced women lawyers is crystal clear and that’s why it’s so important that we not only set forth this data, but the recommendations and best practices to help address and ameliorate this issue.

 

Bob Ambrogi: Judy, let me ask you, from what you have seen as a longtime practitioner and as the American Bar Association President, I mean do you think that law firms are committed to providing opportunities for women to advance into the partner ranks? I mean is this a problem of law firm commitment or is the problem something else as you see it?

 

Judy Perry Martinez: Well, I think it’s a multidimensional problem to use that word that was used earlier by Stephanie. On the challenge side, what we know is that some firms get it and they know when they invest and provide resources and address what is needed by the individual talents in their firm, including women, and make known from tone at the top perspective what they are going to do in order to assure that they retain that talent, then they are going to have success much more likely in doing so.

 

Another multidimensional challenge is that many law firms are I think awakening to the fact that they need to educate all levels of members within their firms. And it’s not only about management committees setting forth edicts of what should happen in their firms, but it’s also about owning the notion that these firms will never be their best and in fact will optimize profits and success if in fact they have the talent of women at the table within their ranks.

 

So as a consequence, it’s about tone at the top. It’s about policies and practices and procedures at firms that bring forth that tone and institutionalizes it. It’s about educating attorneys within all levels and ranks of the firm about the criticality of this understanding and work and commitment to colleagues who deserve no less.

 

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So yes, some firms are getting it and I believe that they are the ones that are seeing success. Others will have to be there to help bring them along, because if not, I think we can all predict that they will never achieve what they can achieve if they don’t have women at their best because of firm support, just like we give to men across all levels of the firm.

 

Bob Ambrogi: Before we continue the discussion on this report, we are going to take a quick break to hear a message from our sponsor. We will be right back. Stay with us.

 

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi filling in today for J Craig Williams. And with us today is the President of the American Bar Association, Judy Perry Martinez and attorneys Stephanie Scharf and Bobbi Liebenberg, who are the authors of the new study on why women leave law firms at advanced stages in their career.

 

Stephanie, I wanted to ask you, you referred earlier to the fact that part of what you really wanted to do was to go in and look at what the everyday experiences are like for women and men in law firms in order to identify the factors that contribute to success for them. And it was interesting about the results is in some ways their experiences are quite similar, but in other ways they are dramatically different. So what did you find about how it’s different for women in large law firms?

 

Stephanie Scharf: Well, I am glad you made that point, because there are many areas where the experiences are the same and those areas generally focus on the actual practice of law. Women and men love the intellectual challenge of the work, they like the work they perform, they like the control over how they do the work, their relationships with colleagues in doing work and many other aspects of the actual on-the-job experiences. But where it’s different and where there are very significant gender gaps are again what we are calling these building blocks for success.

 

So men are far more satisfied than women for the recognition received for the work they do. Men are far more satisfied than women for how compensation is determined, with the opportunities for advancement, with the leadership of their firm and with firm’s performance evaluation process and a few other factors. So the fact that — it’s clear that firms need to do a better job with the less tangible aspects of how people advance and how they are satisfied with their careers.

 

Bob Ambrogi: You have a section in the report talking about the concept of access to success, is that what you are talking about there?

 

Stephanie Scharf: Yes, and it is again to use the term I used before a multi-factor concept. Sometimes one of the factors about success is are you happy with what you are doing. Another factor of success is how a firm or an employer is treating you or the experiences that you have satisfactory.

 

So for example, an enormously great number of women have reported, and these are all experienced women, report being mistaken for a lower level employee, or they experience demeaning comments or stories or jokes, or they lack access to business development opportunities or a bonus or a salary increase or access to sponsors.

 

(00:20:06)

 

And we measured about a dozen such factors that we are calling access to success and that there were just huge differences between what men report experiencing and what women report.

 

So there is a combination of everyday experiences, kind of what we think of as death by a thousand cuts, that over the weeks and over the months and over the years it really wears women down and does not lift women up the same way men are being lifted up into the higher levels of law firms.

 

Bobbi Liebenberg: I would just add that it is really important that the differences in these everyday work experiences fuel the belief by women lawyers that their efforts at contributions are really not being adequately recognized or rewarded at their law firm.

 

So being denied access to business development opportunities, being denied salary increases, being denied access to sponsors. As Stephanie said, this cumulative effect is leading the decision by women lawyers as to whether or not they remain or leave at their law firm. So this perception, as a result of their gender, these differences women report, it is because of their gender that they believe these experiences are different.

 

I think that’s a really critical point that has to be made.

 

Bob Ambrogi: Well, I was going to say it’s fascinating that the dramatic — I mean you mentioned being mistaken for a lower level employee, the survey says 82% of women reported that, whereas 0% of men in the survey, pretty striking differences.

 

And of course sexual harassment is an issue as well. I think unfortunately we might expect that to be the case. I mean is that fair to say that — I mean maybe at senior ranks you will expect it less, and I don’t mean to condone it, but I mean I think people are much more aware of sexual harassment as a factor in the workplace than some of these other factors that you talk about.

 

Stephanie Scharf: There is a general awareness, although it’s also the case that even among women who have been in private practice for many years, 50% of the women said they had received unwanted sexual conduct at work. I mean in essence, one out of every two women said they experienced sexual harassment, and that’s for the women who stayed. The number we expect is much higher for the women who left.

 

Bob Ambrogi: Yeah, that’s another alarming finding out of this.

 

So you go on in the survey to talk about — to look at why women lawyers stay at their firm and why they leave their firms. Bobbi, can you explain more what you found there?

 

Bobbi Liebenberg: So our survey found several things in terms of the reasons why experienced women lawyers leave their practice areas, including stress and the time needed to devote to caretaking commitments and our research demonstrates that experienced senior women lawyers continue to bear this disproportionate share of the responsibility for arranging childcare, laundry, cooking, leaving work to take care of children’s needs.

 

And I think what’s important, when you see these responsibilities layered on top of the pressure to market and originate business, 52% of our respondents said that, and meet onerous billable hour requirements, 51%, it’s clear that by age 50 or so experienced women lawyers have simply had enough and that seems to drive this cumulative effect again, this death by a thousand cuts is what determines whether women will stay or remain at their law firm.

 

Stephanie Scharf: I would like to add that those results don’t mean that that’s a woman’s problem. Those results mean that firms have to think much more creatively and much more proactively about what they can do to accommodate what is a given reality of life.

 

For example, looking at their part-time and flextime policy, looking at their policies on leaves of absence, legal careers can last 40 years. There is no reason why someone has to be written off if for a few years she goes part-time or even if she takes a leave for a few years, there should be room in a law firm to accommodate much more flexible arrangements so that firms keep this talent and keep women over the long period of time that they should be able to enjoy a career.

 

(00:25:05)

 

Judy Perry Martinez: I really think that’s an important point that Stephanie said and I really would like to reinforce it, because there is evidence that I think some male leaders believe that attrition of women lawyers is caused by lifestyle preferences and/or an unwillingness to make the types of sacrifices that are necessary to promote their career.

 

And I think the research just debunked this false narrative and what is holding women back is not a lack of ambition or a lack of drive or an unwillingness to work hard or a dislike for the practice of law, but it’s these structural and cultural issues at law firms and the implicit biases that women have to face. And the onus really has to be on law firms to try and figure out how they can address these issues.

 

Bob Ambrogi: It’s interesting you say that. I mean I was wondering that as I read the report, because I mean the report says that that these women lawyers are much more likely than men to be the one solely responsible for multiple dimensions of childcare in their home lives. I mean that alone struck me as a surprising finding. I tend to think many couples are much more evenly balanced these days in terms of assigning and taking care of matters around the home.

 

But it left me wondering, what does a law firm do about that, the problem is some inequity I think in how things are handled at home, how does a law firm address that?

 

Stephanie Scharf: Well, there are ways to address it. One, we mentioned before, take a good look at your part-time and flextime policies and the policies for leave of absence and don’t treat someone who goes part-time for a while as somehow inferior or who leaves the firm as dead to the firm. All of these people can come back over a long period of time and have thriving careers.

 

There are other things that firms can do as well. I know that some firms have what they — very few have what they call concierge services to help do things that take up a lot of time, but may not require your personal attention.

 

So it’s not that any one firm has all the answers, but there are ways to blunt the impact of what is the natural reality of many women having full-time responsibilities compared to their men partners, full-time responsibility for arranging childcare, for children’s extracurricular activities. There is additional responsibility often for elderly family members. And the bottom line is keeping talent. If you want to keep talent as a law firm, you are going to have to adjust to the reality of what’s going on in the world.

 

Bob Ambrogi: So you went and looked specifically at what’s working at firms in terms of promoting gender diversity and you made a number of recommendations for what firms can do or should be doing to pursue that. Can you kind of sum up what some of the key recommendations are here that firms should be looking at?

 

Bobbi Liebenberg: Sure. And I think we started out by saying that what’s unique about this study is that the recommendations are actually driven by the empirical results in our study. So these recommendations are data-driven and I think that it does make these somewhat unique.

 

But I think one of the key strategies is you need to set concrete benchmarks and targets and establishing a timeline for what the firm wants to achieve and making sure that the firm gets consensus about these strategies and the benchmarks and the timelines and key to that of course are metrics. And you can’t track what you don’t know, so you have to understand how experienced women lawyers are faring in terms of compensation, percentage of equity partnerships and leadership positions on important committees.

 

There has to be accountability, right? Firm leaders have to be held accountable if they don’t meet these goals that are set forth in the strategies and benchmarks. And this can be done through financial incentives, carrot or stick approach.

 

(00:29:53)

 

And I would also say a really important issue that firms need to look at is succession. 400,000 baby boomers are set to retire hopefully in the next 10 years and most men who are rainmakers became rainmakers because they inherited clients. So if women are part of this succession strategy, we could create a whole new generation of women rainmakers and I think it’s really — this is a wonderful opportunity to get women into the higher level of their firm.

 

Bob Ambrogi: And you make the point that there is no silver bullet, there is no right answer for every firm, so I assume it’s — you recommend that firms need to figure out what’s right for them, what works best for them taking into account what you found in your report and what the data shows.

 

Stephanie Scharf: Yes, I would reinforce everything Bobbi said, but it is important for firms to understand that whether they know what it is, each firm has its own culture and its culture is operating and its culture may not be the formal policies. It’s what people are doing every day in their practice and how they are encouraging younger lawyers, how they are promoting women lawyers so that the notion of a strategy is really key. You have to think through who you are and what you are doing at the beginning of any program for change and have a strategy for change.

 

And one other factor that I would put into this mix is the business case for diversity. Emphasizing diversity and promoting diversity is not simply something to do because it’s the right thing to do, it’s also something that will really ensure the health and long-term well-being of a firm, because it boils down to a matter of talent.

 

In 20 years over half of this country will be people of color. Today 50% of graduating law school classes are women and almost a quarter of them are minority lawyers. If firms don’t figure out to retain an advanced, a diverse set of lawyers, they just won’t be here with very many people in the next 10 years. So it’s really in law firms’ business interest to figure out what’s happening in their firm and how they can make much better progress than they have made to date on these issues.

 

Bob Ambrogi: Judy, you have been sitting there quietly for a few minutes. We are about at the end of the show, but I wanted to give you a chance. Do you have any kind of final thoughts, concluding thoughts on what we have been talking about here that you would like to leave us with.

 

Judy Perry Martinez: I think the consensus is that you are hearing is that women across the profession, like women outside of our profession in all walks of life carry the overwhelming majority of the mental burden of so much of what goes on at homes and families and in what is necessary in order to have a productive and happy and healthy lifestyle across this country and as a consequence that has to be realized. Firms have to take it upon themselves with leadership to sit down and have conversations that are absolutely necessary and have them now, not wait.

 

And they can use this fabulous thoughtful tool as a way to get those conversations started, because the bottom line is that we in this profession need to treat this issue of the long-term careers of women in retaining that talent and intellect and commitment to lawyering at the table as the major investment that it is, and once we consider it that way and law firms consider it that way, I think they will find out that their return on investment will prove to be very favorable.

 

But it’s up to individual lawyer leaders within firms and it’s also up to firms as a whole to recognize this for the major investment it is and why it’s going to return dividends to them for the years to come and not only for them, but most importantly for the clients they serve.

 

Bob Ambrogi: Stephanie, what’s the best way for our listeners to find this report and if they wanted to follow up with you at all, what’s the best way for them to find you?

 

Stephanie Scharf: Well, the report is free online at the American Bar Association. If you go to the americanbar.org and google “Walking Out the Door”, it should be very easy to find. And both Bobbi and I are listed in the report and I am pretty confident if you google either of us, you will easily find our contact information as well and we would be delighted to hear from anyone and everyone.

 

(00:34:53)

 

Judy Perry Martinez: And Bob, let me just add one more closing thought and that is this is a prime example of why engagement in the American Bar Association makes a difference. Your engagement makes a difference, not only to you the individual lawyer, and I know that Stephanie and Bobbi would both attest to that, but it also makes a difference for others, and there is no better example of what the power of many working together can do than this report and this study that was made possible by the talented people we have on the phone with us today, the American Bar Association and ALM Intelligence.

 

Bob Ambrogi: Well, kudos to all of you for the work on this. It’s really an important report and a fascinating read, so I encourage listeners to do as Stephanie recommended, get a copy of the report and go through it. It’s not all that long and you can read it pretty quickly, but it’s really fascinating.

 

So thanks to all three of you for taking the time out of your very busy days to be with us and discuss this report, and thanks for your work on it.

 

That’s about it for this program. If you liked what you heard today, you can always go in and rate this show on Apple Podcasts, Google Podcasts and all those other wonderful places.

 

You can also always find this show and a whole bunch of other cool shows at legaltalknetwork.com, and you can of course comment on today’s show there, or you can, if you want to listen to my podcast, you are not going to find it on legaltalknetwork.com, but you can go over to lawnext.com and find it there.

 

Thanks for joining us today. Thanks for listening. This is Bob Ambrogi. Join us next time for another great legal topic.

 

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