At the recent Women in Law Summit in Auckland in September, Ann Brennan chaired a panel with Steph Dyhrberg, Fionnghuala Cuncannon, Dr Maria Pozza and Helen Mackay, speaking on the topic ‘Why is there is an exodus of women from the legal profession and how can we retain our female talent?’

This article shares the exploration of the issues and proposed solutions from the chair and each speaker.

Ann Brennan, Chief Legal Advisor, Ministry of Business, Innovation and Employment

The numbers clearly show us that more women than men are leaving the law or unable to progress. Women are well represented at solicitor level but this drops off at partner level – two-thirds of law graduates are female but only one-third of law firm partners are female.

We have a retention problem as women leave the legal profession at a rate three to four percent higher than men. This variance begins early with two to three percent more women than men admitted but never entering legal practice. There is also a leaky pipeline for females aged 50 years plus. Why do they leave in their prime and how can we encourage them to stay?

High mobility also appears to apply to female in-house lawyers. American data suggests a motherhood penalty at play as 4% of female in-house lawyers say they had to quit their job to look after dependents. A third of in-house female lawyers in the US say they would leave their in-house position for another career opportunity and 40% said it was difficult to find a position after a leave of absence, increasing to 60% if the leave of absence was over a year.

The NZLS Gender Equality Charter is one initiative we can all support to create change. The Charter is a set of commitments aimed at improving the retention and advancement of women lawyers. Charter signatories are asked to meet these commitments over a two-year period and report on progress to the Law Society. There are currently 100 signatories covering more than 2,700 lawyers including all but two of the large law firms and many smaller ones, in-house teams and barristers. Signatories commit to lead from the top, make plans, take action and measure progress. The specific commitments include tackling unconscious bias, encouraging flexible working, closing the gender pay gap and promoting equitable instructions.

Fionnghuala Cuncannon, Partner, Meredith Connell

The numbers indisputably show that the legal profession has significant leaks in its talent pipeline. It’s okay that practising law is not for everyone. From NZ Inc’s perspective some of the leaks aren’t a problem; a law degree and experience as a junior lawyer provide an excellent platform for other stimulating and rewarding careers. But large law firms most certainly have a problem retaining women. Smart, hardworking women are fundamental to their success; they are the majority of the solicitors and senior solicitors who get the challenging work done under tight timeframes for sophisticated and demanding clients.

The numbers reverse at more senior levels. That is because life in a large law firm is harder for women. That reflects both internal and external issues:

Unconscious bias is an issue at every level within firms

Women are disproportionately expected to undertake the “detailed” work and are less likely to be involved to the same degree as their male peers in client facing or strategic work. A difficult research task, a complicated discovery, etc are typically more likely to be tasked to a woman because they are a “safe pair of hands”. In this way many smart young women are punished for their own skills because partners are simply defaulting to the easiest way of getting work done. But this makes the transition from “most valued junior” to being a leader of the firm more difficult, with women having fewer opportunities to demonstrate they’re also great at the “business of law”.

When seeking to step up, unconscious bias bites again: men are generally seen as more “commercial”, that is, more likely to have what it takes to bring in clients/fees. The research is clear that women are generally promoted on demonstrated skills and men on potential, so succession planning and assessments of associate and partnership applications are particularly impacted.

And if all this wasn’t enough, women also often get less help from support staff and yet face greater pastoral care expectations from both legal and support staff.

Outside of work, women still carry a disproportionate amount of the mental load and unpaid responsibilities within our homes and communities. Of course, this impacts on both desire and capacity to progress within firms. These wider responsibilities are also part of the unconscious bias at play when firms are assessing who they see as being able to take on partnership responsibilities.

So how do individual women who want to progress in large law firms tackle these issues? I suggest:

1. It is vital to understand the difference between sponsors and mentors and ensure you have both. Without sponsors, it is impossible to progress in a firm.
2. Focusing on developing your business case. Being a good lawyer is a given; it is not the basis on which partnership decisions are made.
3. Actively seeking out opportunities for client facing work and involvement in pitches for new work. Make it clear that you understand your skillset needs to be broader than your technical legal skills and make sure goals to develop these other skills are part of your development discussions.

None of this is to suggest that the responsibility for change lies only with individual women. Law firms will continue to be the poorer if they don’t confront the structural and cultural issues that inhibit the progress of many of their best and brightest. For all of us who care about these issues we must continue to challenge unconscious bias, call out issues, and actively promote opportunities for women at all levels.

Steph Dyhrberg, Co-founder, Dyhrberg Drayton

Why are they leaving?

The legal profession can be a harsh environment, with overwork, bullying, harassment and sexual assault. Many women discover it is not what they want to do – they find something else they want more. Up to 25% of people who experience sexual harassment will leave their job and many will leave the profession. There is also the inflexibility of legal jobs with children and families. The whole equation means it’s just not worth it.

We are eating our young: we raise them, educate them, give them amazing experiences, celebrate them, and avidly recruit them – then either use them as cannon fodder or let them experience benign neglect. There are often issues with poor supervision and impatience from senior lawyers as junior lawyers come up to speed.

Unconscious bias

The group that rates itself most satisfied with the status quo, who doesn’t believe gender affects the law and sees no reason for significant change, is the group statistically most likely to harass, discriminate and bully. We need to break through their complacency – a challenge that requires tools and training. Everyone carries unconscious biases – we need to surface them, acknowledge them, challenge them with data, and address them with a plan.

I am starting to call this “wilful blindness”. It’s not for women to fix the issues that discriminate, but we are raising awareness.

Practical tips we can (and should) all take

• Keep talking and writing.
• Listen and debate.
• Circulate useful clips and articles.
• Initiate courageous conversations, eg, Why is it like this? Why do we keep doing this?
• Call out unacceptable behaviour and ensure you protect complainants.
• 360 degree feedback for partners and managers.
• Watch the unconscious bias and preventing sexual harassment webinar.
• Independent surveys/engagement tools and action plans to address issues.
• Blind CV recruitment.
• Establish values-based criteria for partnership.
• Ensure gender balance and diversity on every panel you speak on, including every hiring panel.
• Measure and eliminate pay gaps.
• Promote uptake of parental leave and flexibility – and have a policy on this. Walk the talk as a senior person and make flexibility normal.
• Promote an open-door policy and listen – use a “suggestions box”.
• Have junior representatives on the board/ELT.
• Have a workshop on your own culture – establish your own values and what that looks like in practice.
• Have a plan to develop and promote your women employees – establish targets.

Dr Maria Pozza, Associate, Govett Quilliam

Let’s just call it a shovel, instead of a spade!

Our profession needs to take a good hard look in the mirror – we are far from where we ought to be in comparison to our overseas counterparts. In fact, we are failing quite shamefully. Why is this the case and why do we let this happen?

A question I often ask is why is bad behaviour tolerated by others at the same or higher levels in the organisation – why don’t more people with the same amount of power ‘call it out’? Possibilities include: our fee structure demands that those holding a higher leadership position must tolerate inappropriate behaviour from others at the same level due to business/economic driven needs and requirements.

How do we keep women in the profession?

Stronger leadership within law firms – leadership has to take a stand and actually say “this is intolerable, inappropriate, and unacceptable. We need to look after our people better”.

• There needs to be better protection for those people that do call it out or whistle-blow;
• Better representation of women in higher ranking positions which actually means accepting the unique difficulties that women face in our profession:
  • More diversity using targets where necessary;
  • Equitable opportunity;
  • Acknowledgment that this is happening in the profession, accepting that this is happening, and then finding a solution. So far there has been a lot by way of “defensive” and “offensive” postures – but we need a solution-based posture now.
• We need more input from lawyers at my level who can offer on-the-ground perspectives – perhaps once upon a time partnership was the be all and end all, however, there are probably more women now who are not so sure partnership is for them given their experiences.

Helen Mackay, Director, Juno Legal

Women say they leave the law for several reasons. Some because the profession is inflexible, some because an unreasonable level of sacrifice is required, some because they make that sacrifice and it doesn’t get them the same rewards it gets their male colleagues and others because they get burnt out or treated poorly.

Suggested solutions

Flip the focus: Steve Jobs’ mantra was to always put the customer first. Richard Branson’s is to focus on his employees first. Every law firm and most in-house teams I see emphasise that they put their client first. I suggest we flip this to put our people first always and our clients a close second. If we look after the people who look after our clients then both will be happy.

Stop equating flexibility with childcare and the role of mothers: Flexibility is about autonomy and freedom, not parenting. There are lots of reasons to work flexibly – of the three non-parent lawyers in the Juno team, one has his own start-up business, one is involved in the peace movement and the other has come back from a demanding global role and is relishing working in a more balanced way.

In-house lawyers need to use their buying power wisely: Rather than expecting law firms to change by choice, the buyers of legal services need to create change. Microsoft has had a Law Firm Diversity programme for more than 10 years. The first phase saw firms get a bonus equal to 2% of fees if they reached a quantifiable diversity goal; either becoming more diverse as a firm overall or if more diverse lawyers were doing the Microsoft work. Three years ago, they shifted their focus to leadership so firms get a bonus if they increase diversity in the leadership of the firm, in who has the key relationship with Microsoft and who does the legal work with Microsoft with their overall top scoring firm getting an extra 1% of fees and public recognition. The metrics are both absolute, eg, 25% diverse partners but also about progress, so each 1% increment gets rewarded. In 10 years, the percentage of hours worked on Microsoft matters by diverse lawyers went from 33% to 48%. In that time their litigation track record has strengthened and key legal success targets have been met. Microsoft do not credit diversity efforts solely for this progress, but they believe it is a substantial part of the success. I’d love to see diversity targets become an integral part of RFPs and panel arrangements in New Zealand – with diversity being viewed in its widest sense.

Bring back our legal talent: We need to provide better avenues, training and support for people to return to the profession if they have had a lengthy break. There is a huge pool of untapped talent out there and in this tight legal market these people should be supported and encouraged to return to the law. Other professions do this well and the legal profession needs to catch up.

360 degree reference checking: Instead of reference checking being the privilege of the prospective employer only, if employees could check the references of their prospective manager from people who previously worked for them, bullying and harassment would be more readily identified and avoided. Firms would be less tolerant of bad behaviour if it caused them to miss out on recruiting key talent.

Enough: I’m the daughter of a small-town lawyer so I grew up seeing law as a vocation and service. I think the profession has lost its way with its focus on profit. A large firm partner I had lunch with recently went so far as to say “law has lost its humanity” as he was telling me about the 10 hours per day another large firm requires their junior lawyers to record. Jim Farmer QC wrote an article this year about working at a large firm in the 1970s when there were no timesheets and no budgets. I think we need to return to that model. Juno has no financial targets and our team are paid for every hour they work. And we frequently say no to work if to say yes would overload the team’s capacity. We trust that if we build a great team, really look after our team and really look after our clients, there will be enough.