Women Lawyers & the Boys’ Club

In Vancouver, the law game has been talking about gender equality for well over a decade. But for all the rhetoric and the programs, how come we don’t have more women lawyers?

Lisa Vogt doesn’t foresee gender parity at the partnership level in law firms anytime soon.

In Vancouver, the law game has been talking about gender equality for well over a decade. But for all the rhetoric and the programs, how come we don’t have more women lawyers?

True story: Not long ago, a distinguished Court of Appeal judge (from another jurisdiction) retired to Vancouver Island to launch a lucrative practice of doing one-day private mediations for parties wanting to avoid the time, cost and uncertainty of going to court. On one such occasion, in opening remarks to the parties, the judge said that they could either settle their differences that day or they could head down to the courthouse and let “one of those soccer moms they’re now appointing to the bench” decide things. “And I don’t think anyone wants that,” he added. Near the end of the day, with the parties still a ways away from settling, he stuck his head in the boardroom again, admonishing, “Remember: soccer moms.”

By most accounts, old-boy scenes like this are fast becoming a thing of the past. But while the days of overt sexism are waning and women have made up an equal number of graduates at most Canadian law schools for the past 20 years, the question remains: where are all the women partners? 

A study done last year by the Law Society of B.C.’s task force on the retention of women in law shows that after five years of toiling at law only 66 per cent of women are still practicing – a staggering statistic given that it typically takes eight years (four for the undergraduate degree, three for law school and one for articling) to even begin their careers. 

Those who do stay are increasingly choosing to move into areas of the law such as in-house counsel and various government postings, where the hours are thought to be steadier and more manageable than traditional corporate practice.(The Crown attorney’s office has become known colloquially as the Pink Ghetto for its preponderance of women.) 

The result is that the upper echelons of corporate practice are nearly as segregated as they were a decade ago; the Law Society of Upper Canada (B.C. doesn’t keep such numbers) pegged its 2009 share of female partners at 19 per cent. A final gloomy stat? If this glacial pace continues, women will not reach partner parity with men until 2088 (according to a 2009 report by Catalyst Consulting), by which time Howe Street may be knee-deep in melted sea water.

It wasn’t supposed to be like this. When Lisa Vogt, now the regional managing partner at McCarthy Tétrault LLP in Vancouver, graduated from UBC law in 1982, one-third of her class was female and the possibilities seemed endless. But early on in her career, while clerking at the B.C. Court of Appeal, she experienced the clash of law school idealism with the firmly entrenched business community.

“Chief Justice Nemetz wanted to take the clerks out to a special lunch, and in those days the Vancouver Club was the place where business was done,” remembers Vogt. But not only were women not allowed to join back then; they were required to enter through the side door. “To his credit, the chief justice came with us through the side,” she adds, but it was a clear example of how much catching up the legal profession had to do to bring about equity. 

For Anne Giardini, president of Weyerhaeuser Canada as well as a member of the Law Society’s task force on the retention of women in law, serious change seemed like a given when she graduated from UBC law in 1984. But fast-forward a quarter century and Giardini still faces daily reminders of just how far there is yet to go. “Not long ago, I asked a colleague to supply me with a list of appropriate lawyers for a task.” She received 10 names – all men. “I grieved when I got it.” 

Part of the problem lies not in the fact that women haven’t moved forward, but that the practice itself, with its continued emphasis on billable hours and client marketing, has moved forward faster. Thirty years ago, a full-time downtown lawyer might bill 1,450 hours a year, which is billing an average of six hours a day, five days a week, taking off stat holidays and having a two-week vacation. Today that 1,450 hours would be expected of someone working a flexible four-day week, or 7.5 billable hours a day – a number that would make dropping off and picking up kids every day a near impossibility. A simple litigation matter that used to be tried in four days now takes four weeks due to the flood of marginally relevant information and endless pretrial motions. 

[pagebreak] The other part of the problem is the dreaded m-word: maternity leave. The standard law firm trajectory remains the gradual climb from articling student to associate to partner, a decade-long slog that allows for scant interruptions in its rigid path. And once at partner level, it may be another 20 years with your nose to the grindstone before any sort of breather is condoned. And it’s not just mat leave’s required time off that spooks traditional firms; they fear an attendant lack of focus or worse, a woman quitting altogether post-baby. All conspire to keep many firms talking the equality talk while still secretly preferring the supposed security of hiring male lawyers. 

No firm is happy about this state of affairs, but they’re less happy about the prospect of upsetting their profitability. As one partner at a downtown firm explained, on condition of anonymity, “It’s not that we don’t want to hire women; it’s just that it’s like playing penny stocks: the payoff is great when they stick around, but for every one who stays practicing, you have multiples who give up the profession altogether.” 

Off the record – the place where old-school sexism still lives – many of the partners I spoke to, at medium-sized firms across Vancouver, are fearful of committing to the expense of nurturing young lawyers from articling student to associate if the candidates are going to halt the process to have kids, then potentially never return. In the short term, it’s still safer to go with a man. 

Perhaps the most daunting fact is that for years many law firms have been actively trying to increase the number of female partners, with marginal results at best. A random sample of Vancouver firms tells the gory details: Farris Vaughan Wills & Murphy LLP has 44 partners, only seven of whom are women. For Fasken Martineau Dumoulin LLP, the tally is a woeful 60 and 12. Fraser Milner Casgrain LLP: 22 and 6. And contrary to the retired judge’s rantings, the federal government, which ostensibly has the might to enforce gender equality, also fares poorly: of the Supreme Court of B.C.’s 105 justices, only 33 are women.

A huge part of the problem lies in the social aspects of law practice, which are irrevocably tied to the business aspects. At a firm function, for example, a male articling student starts a conversation about the relative merits of signing Ryan Kesler to a long-term deal and soon he’s being asked to the private box with the bold-name corporate client. A comment about the hitch in, say, Jim Furyk’s swing leads to being asked to be the fourth in a foursome at Shaughnessy with the managing partner. All these actions are ostensibly gender neutral – any glutton for pain can be a Canucks fan or golf enthusiast – but in practice they seldom are. Complicating things further is that many women who ascend the ranks of a firm are conscious of the appearance – and more susceptible to the charge – of favouritism, leaving young female lawyers doubly ostracized when trying to forge those connections key to career success.

However, a new breed of practitioners have parked the ideological debate about right and wrong, deciding instead to roll up their sleeves and argue the business case for better female representation. Their aim is to convince senior partners that the reason to hire and retain women lies not with participation in some intangible “good works” project but rather to ensure legal prosperity in the coming years. 

Vogt is one such practical acolyte. In addition to her regional-managing-partner duties at McCarthy Tétrault, she also helms the firm’s national diversity committee and works with Giardini and others on the retention-of-women task force. She’s been actively involved in the thankless practice of arguing for diversity for well over a decade. In 2002 McCarthy, with the diversity committee’s guidance, took the then-industry-leading step of retaining an outside consultant to come review the firm’s practices and do an entire diversity audit. The results were clear: not enough women. The committee then prepared an in-depth business case to sell the concept to the entire partnership of actively increasing diversity as a savvy financial move. The plan noted that clients were already starting to make enquiries about the firm’s diversity and that ­McCarthy was losing top talent because of its lack thereof.

Many see McCarthy’s adoption of a business-case model as the only path that most lawyers would be willing to follow toward gender equality. It sidesteps all the sticky moral and ethical arguments and moves straight to what matters most to a business: the financial bottom line. A key point in that case is that an increasing number of large corporate clients require law firms to demonstrate their diversity to be considered for legal work. In the U.S., for instance, heavy hitters such as Wal-Mart Stores Inc., Microsoft Corp., Johnson & Johnson and Coca-Cola Co. have agreed to factor in diversity when selecting outside counsel. And while the practice is not as widespread in Canada, Vogt, who anticipated this trend eight years ago, says it’s coming quickly: “In the last eight months, we’ve received a number of letters from companies making it clear that diversity is one of their strategic priorities and that they expect the same from their law firm.”

Bookend this with one of the ironic side effects of the exodus of women from private practice – the increasing number of women working as in-house counsel, who are deciding which firms will get their company’s work – and the message is clear: show up at a firm presentation with two rows of matching Hugo Boss suits at your peril. Anne Giardini, for example, has not instituted any concrete rules about female representation at Weyerhaeuser but is quick to point out, “I make sure I know who at the firm is working on my team.” 

[pagebreak] Another business-case reason for hiring women? Studies done by the Law Society of Alberta in 2004 show that women without children are the highest billers in the profession, besting both men with children and men without. And for women with children, Giardini – wearing her client hat – has rave reviews: “It’s all about proper perspective. The 35-year-old female lawyer who is having to juggle work and home life is the person I want on my team when she’s 50. I recently had a conversation with a fellow practitioner who was recalling the loss, several years back, of an accomplished lawyer who took some time off practice to care for her kids. I asked him what happened next, and he looked at me confusedly; for him the story was over when she took her leave. It never occurred to him that it should have only been the first chapter of a professional relationship. Had he continued working with her, she could have become a great asset.” 

The numbers support this idea: a 2007 report from the Massachusetts Institute of Technology found that only 22 per cent of women opting out of private practice (be it for mat leave or other reasons) exit the legal world forever; most move on to environments such as the public sector where there’s greater flexibility to manage both a practice and a family. That leaves the corporate sector griping about lost development costs when all that might be required is a modicum of patience: a 2005 study by the Harvard Business Review reported that businesswomen who leave the job are only away 1.2 years on average before getting back in the workplace. 

(One additional point that everyone knows but doesn’t find its way into the report? Women also work for less, which is good for the bottom line. “It’s not fair and it’s not right,” says a senior female practitioner well versed in issues of compensation, “but your average 50-year-old female lawyer is paid less than her male equivalent.” Why? A multitude of reasons, but mostly they’re happier to have the job and will accept less to do it.)

But it’s the final point of the business case that may turn out to be the beacon for change: due to an aging bar, there will not be enough lawyers, men or women, to go around in the near future. Numbers tabulated by the retention of women task force show that in 1998 77 per cent of B.C.’s lawyers were under the age of 50, with the average age being 43. By 2008 only 55 per cent were under 50, and the average age had risen to 47. And while the number of old lawyers is increasing, the number of new ones is staying the same. The message is that those firms that are flexible, that offer a more welcoming work environment, will have the best chance of attracting and retaining top talent. 

Notwithstanding all these reasons, change has been slow to come. McCarthy’s forward-thinking approach to hiring and retention has so far only netted 12 women partners out of 48 in the Vancouver office. “It’s not enough,” concedes Vogt, though she adds that the ratio has been improving since 2004. She’s confident that, over the long term, the firm’s myriad programs – such as requiring active mentoring by the partners and having “buddies” who keep mat-leave lawyers in the loop – will help to both retain women lawyers and advance them to the firm’s upper echelons. 

“Truthfully, I don’t think we’ll see gender parity at the partnership level in the profession in my lifetime – or my daughter’s, for that matter – if parity is understood to be 50 per cent women equity partners,” continues Vogt. “Our women and men associates are equally capable. But social norms influence the choices we make, and in circumstances where women still assume a significantly disproportionate share of family responsibilities, more women than men are likely to choose a less demanding way to practice law. 

“What we should see is a situation where women coming out of law school have an equal access to any path, from partnership to in-house counsel. It will be a matter of personal choice. The good news here is that if we continue to ensure equal exposure to opportunities, the percentage of women equity partners will grow significantly.”