BigLaw's Gender Diversity Problem Is The Traditional Model Itself via Law360

Posted on 07-25-2016 by
Tags: Industry Insights & Trends , legalwriting , LIT , womensequality

The article below has been republished in full courtesy of Law360, written by Mark A. Cohen, Legal Mosaic LLC . 

Anyone remember the Jerry Reed song, “She Got The Goldmine (I Got The Shaft)”? The country crooner garnered a Grammy for singing about the inequitable upshot of his divorce. That song came to mind when I read the recent Law360 Glass Ceiling Report on women in law firms. Perhaps a female lawyer with a good voice and an ability to strum could reprise Reed’s tune and call it: “He Got The Corner Office (I Got The Door).” Female lawyers still get the shaft. Why?

Law’s playing field has been anything but level as far back as I can remember. My first experience with the profession’s gender bias came decades ago when I was a young assistant U.S. attorney. Not only were male AUSA's routinely assigned the high-profile cases (confession: I was a prime beneficiary), but also female AUSA’s were paid less. On several occasions when I was in court with a female AUSA — and this was federal court — judges would refer to my colleague as “young lady” or comment upon her appearance. There were AUSA’s and “female AUSA’s.”

Things were even worse when I entered private practice in the go-go days of the early eighties. One of my partners, a woman, would tell me that her biggest challenge preparing for an opening statement was what to wear. As a recovering trial lawyer, I understand that jurors — and judges — are influenced by dress and appearance. But it’s a much bigger issue for women than men. And it’s one where female lawyers were hard-pressed to win — their outfits either made them “too pretty” or “like a guy in a boxy suit.” And did I mention that same female trial lawyer (an anomaly then), one of a handful in our firm, earned significantly less than her male “partners” with similar experience and billings? I remember asking about that at a compensation meeting and being told, “She doesn’t need to make more; her husband has a big job on Wall Street.”

But that was back in the mid 1980s, and this is now. Yogi Berra might say “it’s déjà vu all over again“ because — remarkably — things have not changed all that much. It’s just that the concrete barriers for women are now adorned in ivy — the wall remains but its appearance has been softened. The Glass Ceiling Report lays out the indictment. Female attorneys still make only 87 percent of their male counterparts. Women comprise only about one-fifth of partners at large law firms. And just 4 percent of BigLaw managing partners are female. The statistics are especially perplexing (vexing, too) at a time when BigLaw’s clients — the Fortune 500 and other large companies — are pushing hard on internal diversity as well as with vendors.

Corporate legal departments are seen to be more welcoming to female attorneys than law firms. For example, approximately one quarter of Fortune 500 legal departments have female GCs, and that number is rising. And more women are assuming leadership roles in those departments than at law firms. What are the reasons for this divergence?

For one thing, it’s a company mandate — the client demands it. Another reason is that business generation, the sine qua non for law firm advancement, compensation, and influence, is not in play. It’s not, of course, that women are not or cannot be rainmakers. But they are far less apt to be encouraged to take on that role at law firms and even less likely to “inherit” business from a retiring firm partner. Also, law firm culture — let’s call it DNA — is built on a business model that enshrines billable hours (regardless of efficiency or outcome), and the more “available” one is, the better. Translation: women have historically been “punished” for maternity leave, childcare, and a host of other work-life balance issues.

Then there’s the more subtle — but perceptible — partner mindset that women won’t “sacrifice” the way men do. And when women do forego other things for pursuing the vanishing gold ring of law firm partnership, they are often criticized for their one-dimensional approach to life. “Bed checks” to see who is at the office — usually for reasons having nothing to do with client service — persist and are even more of an absurdity with today’s technology that creates mobile work environments and provides greater flexibility when it’s done.

BigLaw was architected by men for men. And while some firms are making considerable efforts to level the playing field and to right past wrongs, their structure, reward system and deeply embedded resistance to change militates against rapid progress.

Diversity will be achieved when the traditional law firm partnership model has its sunset. That applies not only to women but also to other minority groups for whom the current hand is a tough one to play. Less focus on pedigree and socio-economic homogeneity and more attention to exposure, development and mentorship will help to level the playing field. And even if this is a departure from established firm culture, there’s a pragmatic reason for changing it: business. Clients are finally getting serious about vendor diversity. And that’s because it’s good business for them, too.

When I co-founded Clearspire almost a decade ago, we saw the opportunity to tap into a rich talent pool of lawyers that had been systematically marginalized by large firms. Women, of course, were at the top of the list. I was admonished that by hiring too many women we might create an unfavorable image as “the mommy firm.” That bogus concern was roundly rejected, and Clearspire had little problem attracting top talent and achieving a diverse crop of attorneys. Why? Our structure was very different than BigLaw. Attorney performance/advancement was not predicated on origination or number of hours but on expertise and efficiency.

Bill Henderson recently wrote a thoughtful paper entitled, “Solving the Legal Profession’s Diversity Problem.” The crux of his thesis is that there is really no “system” for creating successful lawyers and partners. He proposes a remedy that includes: doing away with pedigree emphasis; not equating motivation with hours; ensuring experience with high-quality assignments; providing training and feedback; and mentorship. Sounds right to me.

The ascendant role of in-house counsel; the flat demand for law firm services when overall legal spend is rising; the proliferation of legal service providers; significant investment in technology driven companies in the legal market, and recent activity by the Big Four portend accelerated change in legal delivery. Their structures differ from law firms and are premised on very different criteria for admission, contribution, advancement and reward. This will be a diversity accelerant and an antidote to an incumbent partnership model that no longer serves clients or most lawyers very well.

Author's Note: Since writing this, Cravath has appointed a woman, Faiza Saeed, to lead the firm. Congratulations to Ms. Saeed and the firm upon this significant appointment.

—By Mark A. Cohen, Legal Mosaic LLC

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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