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Policy will result in more women taking the lead

02 February 2018 - By NIck Butcher

A policy that could change how law firms and clients think when assigning lawyers to major cases and investigations was launched in December 2017.

The Gender Equitable Engagement and Instruction Policy (Eqitable Instructions) is aimed at developing and retaining the skills of women lawyers.

A woman walking down a street

While over 60% of law school graduates are women, climbing the legal ladder for many appears to be more difficult than being admitted to the Bar. The number of women lawyers in New Zealand exceeded the number of men for the first time in January 2018.

Development of the policy was led by Russell McVeagh and several other law firms along with a number of large corporates. The New Zealand Law Society and New Zealand Bar Association are jointly promoting and managing the policy.

It can be adopted by any user or provider of legal services, including clients, law firms, chambers, in-house teams and legal departments and individual lawyers.

How it works

By 1 December 2018 policy adopters will use reasonable endeavours to have women lawyers with relevant expertise take a lead on at least 30% of court proceedings, arbitral proceedings, and major regulatory investigations.

It’s no secret that women are under-represented as lead counsel, especially in significant commercial litigation. Furthermore, men outnumber women as barristers and in Queen’s Counsel appointments.

Could this be a game changer?

Kate Davenport QC has been practising law for over 30 years and, as the New Zealand Bar Association’s President-Elect, has been involved in launching the policy. She thinks it has great potential.

“It’ll make organisations and lawyers who brief barristers think about what they’re doing. It’s all very comfortable for people to just brief the lawyers they’ve briefed before, and traditionally that has more often been men.

“I hope this policy has law firms and clients asking themselves who else they could instruct and let’s look at the women lawyers for this work. The policy brings the issue to people’s consciousness and that will then become habit and lead to women doing better kinds of work,” she says.

“It is time to put a stake in the ground. It is immensely encouraging that some of the major players in the provision of legal services and some leading corporate organisations are early adopters of the policy,” New Zealand Law Society President Kathryn Beck says.

Resistance expected

Ms Davenport anticipates some resistance to the voluntary policy.

“There’ll be people that think it (the target) should be 50% and not 30%. There’ll be others that think people should be chosen on merit. But this is not about choosing someone to do a job just because they’re female. The person must have the skill level to do the job. This is about making people think about the equally meritorious people they may not have considered in the past.”

Ms Davenport says the only barrier to advancement should be ability and firms which adopt the policy will be sought after by new female graduates.

“This policy gives women the opportunity to do more senior litigation work. Women need to be seen to be doing this so that they can put it down on their application form for QC. This policy will be very positive for women in law. I have two nieces who are young graduates working for large law firms and I do think the barriers are there,” she says.

Putting the policy into action is as simple as notifying the New Zealand Law Society. However, firms that adopt the policy but fail to meet reporting obligations, will be removed from the list of policy adopters on the Law Society website.

Being a young female lawyer in the past

On the outside it may appear as if Kate Davenport has risen to the top with ease, but memories of the early days of practising law are not quickly forgotten.

“During one of my first job interviews I was asked what form of contraception I was on, because clearly as a woman I was going to go off and have children and leave them. They’d never ask that sort of question now and then, when I did get a job in a large law firm, I was told that I shouldn’t admit knowing how to type or photocopy because women would be asked to do that work. Routinely, I would go into meetings and be asked to make the coffee,” she says.

Ms Davenport says those blatant barriers have gone but the subtle barriers still remain.

She says appearing in a case before the Privy Council probably helped her make Queen’s Counsel.

“But interestingly since I became QC, I’ve been offered a lot more Family Court work and I do think there is a perception out there that because I’m a woman, that’s what I do.”

Jenny Cooper QC has been practising law for over 20 years and is also an avid supporter of the Gender Equitable Engagement and Instruction Policy.

“For a long time people thought the situation with women in law would take care of itself. That hasn’t happened. There seemed to be an idea that once we reached 50% of practising lawyers in the profession equality would follow but women have continued to lag behind men in progression.

“People used to say to me, ‘don’t worry it’s just a timing issue’ but it’s clear that we need to do more than just wait,” she says.

Targets work

Ms Cooper says while there will be criticism over having a 30% target for women to take the lead in court and arbitral proceedings along with major regulatory investigations, she thinks it’s needed.

“Unless you set a target and impose some sort of discipline to measure your achievement against it, then it’s really hard to get change to actually happen. People can agree in principle with the idea of change but actually bringing about change in behaviour that has been entrenched and has become habitual is very difficult.”

Ms Cooper says 30% is merely a starting point.

“Our long term aim is to get to 50% but it’s a question of what’s achievable.”

Ms Cooper says the policy would work when, for example, a case comes up. If it’s a company they’ll have a couple of law firms that they regularly use for litigation and will probably approach the partner they’ve dealt with for 10 years and go with the recommended person.

“This policy means people will stop and think about who else there is and if there are any women solicitors or barristers we could use for this case on the list. If not, why not. It’s about being conscious of those decisions and making sure you’re not shutting out people from consideration. You’re also giving clients a broader choice,” she says.

Jenny Cooper says it’s not a case of ‘you must always brief a woman’, but is a case of ‘have you considered a range of options that includes women’.

Law firms and other businesses

Sarah Keene is a partner at Russell McVeagh, which is signed up to the policy and was an important player in its development.

She says the policy adopters as firms, chambers and client organisations, have effectively committed to asking the question “is there a woman who can be involved in leading an aspect of this contentious matter?”

“We expect that creating the habit of asking that question is of itself going to make a huge difference to the quantity of women instructed,” she says.

Firms that adopt the policy will have to provide a biennial confidential report of results and measures taken to achieve the 30% target to the New Zealand Law Society.

Beyond the legal profession

It’s very important to note that it’s not just law firms that are behind the Gender Equitable Engagement and Instruction Policy. Major companies have adopted it as well.

Westpac’s General Manager of Regulatory Affairs, Compliance and General Counsel, Mark Weenink says his company aims to achieve more than 30%.

“We will be seeking to exceed the equitable engagement target and aim for 50% of our instructions in both litigious and non-litigious work to be briefed to senior women lawyers. This aligns with the Westpac women in leadership target and is responsive to the recent report commissioned by Westpac which indicates women hold only 29% of leadership positions in New Zealand,” he says.

Mr Weenink says with the high quality of women lawyers available the policy makes good business sense.

“A Westpac-commissioned report indicates addressing the gender imbalance could add nearly $900 million to the economy annually. The policy assists in-house counsel to keep these goals front of mind. In the end all of us will benefit.”

  • The Equitable Instruction Policy can be found on the NZLS website, under Practice Resources: go to Business of Law and then Legal Practice.

Client adopters at 5 December (in order of adoption)

Westpac, Spark, Fonterra, Countdown, Stuff, Watercare, Meridian, Lion, Samsung, Auckland Airport, Chorus, ANZ, Contact.

Legal services adopters at 5 December (in order of adoption)

Russell McVeagh, MinterEllisonRuddWatts, Buddle Findlay, Shortland Chambers, Crown Law Office, Bell Gully, Chapman Tripp, Simpson Grierson, DLA Piper New Zealand, Anderson Lloyd, Kensington Swan.

Last updated on the 2nd February 2018