It is no secret that women are grossly underrepresented and underpaid by comparison to their similarly qualified male peers in the upper echelons of the legal profession. According to NAWL’s 2017 annual survey report, approximately 19 percent of women in AmLaw 200 firms make equity partner, 97 percent of firms report that their top earner is a man, and 70 percent have only one or no women as their top 10 earners. Additionally, according to Law360’s 2018 glass ceiling report, women account for only 12 percent of the highest firm leadership roles as managing partner, chairman, or CEO. Women are also leaving law firms in droves at the more senior levels. By most accounts, a woman’s prospects at a law firm are particularly bleak if she is a working mother, and worse still if she is a minority.
Law firms and organizations attempting to tackle the problem have shown modest outcomes. Firms with robust “women’s initiatives” and “flex programs” report some success in improving retention and promotion of women lawyers as a result of having implemented those programs. Although some stand-out women succeed despite the odds, those women are the exception rather than the rule, and progress has generally been underwhelming. The reasons for this lack of progress have been analyzed at length. One of the reasons for leaving law firms cited by women are schedules and demands that are incompatible with mothering. Those expectations result from an obsolete structure and mentality from which many law firms have been loath to part. I do not pretend to have all the answers; rather, I offer my own perspective as a minority mother of two children who has spent most of her career in private practice. I believe that seriously embracing technology and new management styles assists in the retention and advancement of women in law firms, and benefits all lawyers able to take advantage of flexible schedules and working remotely.
Law firms, for reasons ranging from institutional and implicit biases, to structural inflexibility, are generally ill equipped to offer palatable, or even workable, solutions to this disparity. Some appear to operate from the perspective that law firms are simply not in the business of addressing such discrepancies, treating any offer of flexibility as an exception to the rule—a mere courtesy that will end up stigmatizing or otherwise negatively impacting the career trajectory of those who take advantage of these alternatives. However, law firms (such as my current firm) that are serious about achieving parity between women and other lawyers in their ranks should leverage technology and new management styles that allow more flexibility in location and hours without the traditional unwarranted consequences. This benefits all attorneys, and improves retention (and perhaps incidentally promotion and sponsorship) of women. When law firms offer true flexibility to all attorneys without restricting their career advancement, consciously seek to promote equally those attorneys using flex time, alternative schedules, or working remotely, and include them in important assignments, opportunities, and responsibilities, more women have a realistic path toward advancement within law firms and might remain in private practice.
This is of course only one aspect to this complex problem. For instance, many law firms, while making incremental or cosmetic changes, retain essentially traditional structures conceived largely by men at a time where women did not occupy, or occupied a much smaller proportion of the workforce. Law firms exist as part of a larger profession shaped by men and their concepts of leadership, lawyering, and professionalism. The profession exists in an economy in which a majority of the power remains concentrated in men giving business disproportionately to other men. Although the presence and impact of women in the profession has grown in important ways, including within law firms, firms still lag significantly in terms of retaining and promoting women.
There are also the other common indignities of lawyering while female. I have experienced questions concerning whether and to what extent I wished to advance within a firm due to the fact that I have children. I have pumped breastmilk in a law firm pantry, provided to me for that purpose. I have on numerous occasions witnessed the subtle alienation and devaluing, particularly of minority female colleagues, within law firms. Not to mention that in a post #metoo era, it is not difficult to imagine some of the other impediments faced (or intentionally avoided) by women to the detriment of their legal careers. It is unsurprising under these circumstances that many women ultimately conclude it is not worth it.
Still, law firms that are truly committed to addressing the issue should embrace technology and new management styles rather than simply paying lip service to them. Firms should strongly consider revisiting their flex time and remote working policies and practices to ensure that they are offered to all lawyers, that lawyers utilizing these programs are not singled out, excluded, or stigmatized as a result, and that the firm is not disproportionately failing to promote or provide equal opportunities and support to attorneys who take advantage of such programs. Such measures are not difficult to implement, are well overdue, and could help reduce the disparity between men and women within law firms with regard to retention and advancement.
Lara O’Donnell Grillo is an attorney with Mark Migdal & Hayden in Miami.