Women solicitors as a barometer for problems within the legal profession - Time to put values before profits?

Journal of Law and Society

Volumn 34, Issue 3, 2007, Pages 374-402

  Webley, Lisa ^a   Duff, Liz ^a  

^a UNIVERSITY OF WESTMINSTER   (United Kingdom)

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[No Author keywords available]

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EID: 34547854331     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00397.x     Document Type: Article

References (129)

1. There is also much debate in the legal professional press. For an illustration of the competing views see: 'Having it All?', Letter to the Editor, Law Society Gazette, 31. July 2003, at 1.6;
2. 'Balancing Act', Letters to the Editor, Law Society Gazette, 14 August 2003, at 16;
3. F. Burton, 'New Ways to Work Towards the Work-Life Balance: The Compleat Women Lawyer or Closing the Rhetoric-Reality Gap', edited paper from the Annual Woman Lawyer Forum (2002).
4. See, too, recent research on pay and promotion prospects in the context of parenthood by V. Wass and R. McNabb, Discrimination and the Law: Pay Promotion and Parenthood (2004) at 〈http:// www.cf.ac.uk/carbs/econ/ mcnabb/solspaper.pdf〉,
5. which indicates that women solicitors' earnings are on average only two-thirds that of their male counterparts and that only one-third of the difference in. pay is attributable to a difference in career progression rather than other factors. For a recent exploration of the potential for positive change by the use of affirmative action in the legal profession, see D. Nicholson, 'Affirmative Action in the Legal Profession' (2006) 33 J. of Law and Society 109.
6. Sommerlad and Sanderson's research identified strategies that may be employed to retain women solicitors who had had children. See H. Sommerlad and P. Sanderson, 'The Legal Labour Market and the Training Needs of Women Returners in the United Kingdom' (1997) 29 J. of Vocational Education and Training 45.
7. See, further, H. Sommerlad and P. Sanderson, Gender Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (1998).
8. The studies were conducted by A. Bradshaw and P. Thomas, 'Leaving the Profession': A Survey of Solicitors Not Renewing their Practising Certificates (1995);
9. Sommerlad and Sanderson, id.; J. Siems, Equality and Diversity; Women Solicitors Research Study 48, vol. 1 (Quantitative Findings) (2004);
10. and L. Duff and L. Webley, Equality & Diversity: Women Solicitors Research Study 48, vol. 2 (Qualitative Findings and Literature Review) (2004).
11. Siems, id.
12. In a survey of the largest 100 firms conducted by the Young Women Lawyers group, only 25 per cent of new partners that year were women: C. McGlynn and C. Graham, Soliciting Equality: Equality and Opportunity in the Solicitors' Profession (1995).
13. See, too, C. McGlynn, The Women Lawyer Making the Difference (1998) at 84-5 for a discussion of some women's experiences in this context.
14. For a discussion of the United States experience of double discrimination, see N. Dowd, 'Resisting Essentialism and Hierarchy: A Critique of Work/Family Strategies for Women Lawyers' (2000) 16 Harvard Blackletter Law J. 185;
15. S. Sturm, 'From Gladiators to Problem-Solvers: Connecting Conversations about Women, the Academy, and the Legal Profession' (1997) 4 Duke J. of Gender, Law & Policy 1.19;
16. E. Gorman, 'Work Uncertainty and the Promotion of Professional Women: The Case of Law Finn Partnership' (2006) 85 Social Forces 865.
17. See, further, Dowd, id.
18. There is certainly evidence to suggest that other groups suffer as attention turns on the attempt to redress gender imbalance in the law. See C. Menkel-Meadow, 'The Comparative Sociology of Women Lawyers: The "Feminization" of the Legal Profession (1986) 24 Osgoode Hall Law J. 987, at 901.
19. For a discussion of gender resegregation within law firms, see F. Kay, 'Flight from Law: A Competing Risks Model of Departures from Law Firms' (1997) 31 Law and Society Rev. 301.
20. See, too, R. Abel, 'Comparative Sociology of Legal Professions: An Exploratory Essay' (1985) 1 Am. Bar Foundation Research J. 1;
21. K. Clanton, 'Glass Ceilings and Sticky Floors: Minority Women in the Legal Profession' (2001) 49 University of Kansas Law Rev. 176.
22. See A. Boon, 'From Public Service to Service Industry: the Impact of Socialisation and Work on the Motivation and Values of Lawyers' (2005) 12 International J. of the Legal Profession 229.
23. Martin Mears, President of the Law Society, 1995-1996, Times, 16 April 1996.
24. See, in contrast, C. McGlynn, 'A Different Voice' (1996) 146 New Law J. 816;
25. C. McGlynn, 'The Business of Equality in the Solicitors' Profession' (2000) 63 Modern Law Rev. 442
26. and, for a discussion of the role of cultural capital, see Sommerlad and Sanderson, op. cit. (1998), n. 2.
27. See C. McGlynn, 'The Status of Women Lawyers in. the United Kingdom.' in Women in the World's Legal Professions, eds. U. Schultz and G. Shaw (2003).
28. See, further, J. Hagan and F. Kay, Gender in Practice - A Study of Lawyers' Lives (1995).
29. As Collier explains, fatherhood does not tend to make up such a strong part of core identity by comparison with paid employment: R. Collier, 'A Hard Time to be a Father? Reassessing the Relationship Between Law, Policy and Family (Practices)' (2001) 38 J. of Law and Society 520, at 530.
30. See, too, C. Smart and B. Neale, ' "I Hadn't Really Thought About It": New Identities/New Fatherhoods' in Relating Intimacies: Power and Resistance (Explorations in Sociology), eds. J. Seymour and P. Bagguley (1999) at 530.
31. See McGlynn, op. cit. (2000), n. 9, at p. 447.
32. id.
33. In addition to those cited elsewhere in the article, see H. English, Gender on Trial: Sexual Stereotypes and Work/Life Balance in the Legal Workplace (2003) at 203;
34. K. Hull and R. Nelson, 'Gender Inequality in Law: Problems of Structure and Agency in Recent Studies of Gender in Anglo-American Legal Professions' (1998) 23 Law and Social Enquiry 681;
35. M.-J. Mossman, 'Challenging "Hidden" Assumptions: (Women) Lawyers and Family' in Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood, eds. M. Albertson Fineman and I. Karpin (1995) at 290;
36. Smart and Neale, op. cit., n. 11, at p. 118;
37. Dowd, op. cit., n. 6;
38. C. Fuchs Epstein et al, 'Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession' (1995) 64 Fordham Law Rev. 291.
39. See K. Gerson, No Man's Land: Changing Commitments to Family and Work (1994) for a discussion of the difficulties associated with categories such as men and women, the notion of family and work.
40. See R. Collier, ' "Nutty Professors", "Men in Suits" and "New Entrepreneurs" : Corporeality, Subjectivity and Change in the Law School and Legal Practice' (1998) 7 Social and Legal Studies 27.
41. For a discussion, see D. Rhode, 'The Profession and it Discontents' (2000) 61 Ohio State Law J. at 8-9.
42. See, further, Collier, op. cit., n. 11
43. and Collier (1998), id.
44. D.K. Holmes, 'Structural Causes of Dissatisfaction among Large-firm Attorneys: A Feminist Perspective' (1990) 12 Women's Rights Law Reporter 9, at 13.
45. See the discussion in Canadian Bar Association, Touchstones for Change; Equality, Diversity & Accountability (1993) at 85
46. and, further, M. Thornton, Dissonance and Distrust - Women and the Legal Profession (1996) at 157.
47. R. Collier, 'The Changing University and the (Legal) Academic Career - Rethinking the Relationship between Women, Men and the "Private Life" of the Law School' (2002) 22 Legal Studies 1, at 3-4 for a discussion of reconceptualizing gender and, in particular, our understanding of the masculine.
48. Interestingly Collier also points to these problems in academic life in general in. his review of Bradney's analysis of the changing face of academic life: A. Bradney, Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (2003).
49. For his discussion of Bradney's analysis, see R. Collier, 'The Liberal Law School the Restructured University and the Paradox of Socio-Legal Studies' (2005) 68 Modern Law Rev. 475, at 491-492.
50. See, too, Dowd, op. cit., n. 6.
51. M. Costello, 'Women in the Legal Profession: You've Come A Long Way - Or Have You?' (1997) Detroit College of Law Rev. 909, at 917: They [women] do not believe or want to believe that they are almost certain to encounter gender bias at some stage in their careers that will have the potential to adversely affect their advancement. Because of their complacency, they are unprepared when reality strikes, and often react by changing jobs or careers, or simply dropping out of the work force - in too many cases, depriving the legal profession of their skills and talents.
52. For example, the Women Lawyers' Forum held in London in March 2005 focused on these issues.
53. As McGlynn indicates, the face of legal, practice is changing rapidly, with increased female representation and greater interest being placed on the role and experience of women in the legal profession, after years of neglect. However, the interest is relatively recent and initiatives have yet to lead to a joined-up strategy to assist in fully supporting women solicitors. See McGlynn, op. cit. (1998), n. 5, at p. 2. See, too, the Law Society Diversity Access Scheme, Diversity in Action - A Guide for Solicitors 〈http:// www.lawsociety.org.uk/becomingasolicitor/careerinlaw/equalityanddiversity. lawas〉.
54. This is certainly not a new phenomenon and has been recognized in the United States literature for some time. Nelson and Trubek note that studies in the late 1980s suggest that, although a larger proportion of women and lower socio-economic law students and those from minority groups are entering the legal profession compared to previous decades, they are also the associates who are most likely to leave large law firms. R. Nelson and D. Trubek, 'Introduction: New Problems and New Paradigms in Studies of the Legal Profession' in Lawyers' Ideals/Lawyers' Practices: Transformation in the American Legal Profession, eds. R.L. Nelson, D. Trubek, and R. Solomon (1992) 1, at 9. Further references to United States literature on this area may be found in Nelson and Trubek's chapter.
55. McGlynn, op. cit. (2000), n. 9, at pp. 447-8.
56. However, see Menkel-Meadow, op. cit., n. 7, who considers that such gains have not been made on this basis in the United States.
57. Duff and Webley, op. cit., n. 3.
58. R. Collier, 'Male Lawyers and the Negotiation of Work and Family Commitments', paper given at SLSA Annual Conference 2004 on his research findings from the British Academy funded project.
59. Sturm, op. cit., n. 6.
60. It is admitted that using the term 'women' is a difficult one due to the risk of essentialism. We allowed women who participated in the study to define whether they considered the issues they faced to be ones that were individual to them or were issues that they believed to be specific to particular groups or to women more generally. The findings reflect their views on this rather than, necessarily, our own. We have tried to provide more specific detail on the women's own circumstances where they believed that the issues they raised related to their own characteristics rather than to all women solicitors. For a discussion of the difficulties associated with categories such as men and women, the notions of family and work, see Gerson, op. cit., n. 14. See Collier, op. cit. (2002), n. 18, on reconceptualizing gender and, in particular, our understanding of the masculine.
61. A full account of the research and research method may be found at Duff and Webley, op. cit., n. 3.
62. For findings see Siems, op. cit., n. 3.
63. The Law Society identified 529 women as the population of 'returners to the profession' or 'leavers from the profession' during the previous five years, based on information in the practising certificate records. This categorization is by no means clear cut, see Duff and Webley, op. cit., n. 3, at p. 15. Of these, 82 per cent (439) were interviewed in the Law Society quantitative research, and 341 stated that they were willing to take part in our research. Potential participants were identified using a stratified random sampling technique in respect of these 341 women. The sample was divided into those with addresses in the north and those in the south. We should have preferred to adopt a more sensitive sampling technique; however, this was not possible within the confines of the research.
64. McGlynn, op. cit. (2000), n. 9.
65. See, further, Dowd, op. cit., n. 6;
66. Fuchs Epstein, op. cit., n, 14.;
67. Menkel-Meadow, op. cit., n. 7,
68. and Sturm, op. cit., n. 6.
69. Denise Kingsmill, in the Law Society Gazette, 4 February 1998, 152.
70. Thornton, op. cit., n. 17, at pp. 10-40.
71. See Collier, op. cit. (2002), n. 18, at p. 10.
72. H. Sommerlad, 'Women Solicitors in a Fractured Profession' (2002) 9 International J. of the Legal Profession at 215, stated by a finance lawyer in one of the Magic Circle firms.
73. D. Rhode, The Unfinished Agenda; Women and the Legal Profession, the ABA Report on Women in the Profession (2001) at 6
74. C. Seron, 'Managing Entrepreneurial. Legal Services: The Transformation of Small Firm Practice' in Nelson, Trubek, and Solomon, op. cit., n. 22, at pp. 71-2.
75. See P. Patton, 'Women Lawyers, Their Status, Influence, and Retention in the Legal Profession' (2004-5) 11 William and Mary J. of Women and the Law 173, at 182-3 for a discussion of the sociological literature on these traits.
76. See T. Goriely and T. Williams, The Impact of the New Training Scheme. Report on a Qualitative Study (1996) at ch. 10 for a discussion and, in particular, at 124-5.
77. R. Kanter, 'Reflections on Women and the Legal Profession: A Sociological Perspective' (1978) 1. Harvard Women's Law J. 1, at 7.
78. See, further, E. Gorman, 'Work Uncertainty and the Promotion of Professional Women: The Case of Law Firm Partnership' (2006) 85 Social Forces 865.
79. For a discussion of how teaching partisanship pervades attitudes to legal practice and of the dehumanization and commodification of solicitors, see Sturm, op. cit., n. 6.
80. For a discussion of gender differences, skills, and leadership, see S. Hegelsen, The Female Advantage: Women's Ways of Leadership (1990).
81. Discussions around flexible and part-time working featured prominently in the focus groups. For reasons of space, and because they need more detailed discussion, they are not discussed in this article.
82. The increased negative impact of long working hours on women solicitors who were primary child carers was noted by Sommerlad, op. cit., n. 36, at pp. 217-22, as long hours tend to militate against flexible working practices.
83. See, further, C. Epstein and R. Saute, The Part-time Paradox (1998) for a discussion.
84. This was noted in the early 1990s in the United States by Fuchs Epstein, by Hochschild and, in the 1990s, Nelson and Trubek. See Nelson and Trubek, op. cit., n. 22, at pp. 9-11.
85. McGlynn, op. cit., n. 10, at pp. 103-4. Exclusion, from mentoring and networking opportunities were noted as a concern, by participants who believed these were beneficial to promotion prospects as well as important to professional development For a discussion of the importance of networking and mentoring, see R. Dinovitzer and J. Hagan, 'Lawyers on the move: the consequences of mobility for legal careers' (2006) 13 International J. of the Legal Profession 119.
86. This bears out Thornton's findings, op. cit., n. 17, at p. 163.
87. Institute of Management, The Quality of Working Life: 1998 Survey of Managers' Experiences,
88. cited by R. Parsons, The Heart of Success: Making it in business without losing in life (2002) at 30. See p. 26 for a humorous yet chillingly accurate comparison drawn between a city lawyer and a prisoner - the prisoner is considered to be in a better position than the lawyer, as the prisoner will be held captive for 15 rather than 40 years, even if the lawyer does get to leave the office on occasion.
89. Parsons, id, at p. 28,
90. citing a report in the Times, 11 January 2000.
91. id., at p. 34.
92. Sommerlad, op. cit., n. 36, at p. 221.
93. Siems, op. cit., n. 3, at pp. 62-3.
94. Comments made by a senior barrister in. Thornton, op. cit., n. 1.7, at p. 149.
95. id.
96. See, further, Patton, op. cit., n. 38, at pp. 181-2.
97. Most of the career breaks were as a result of maternity leave, however, for others it was to travel, to work abroad, or to undertake other caring responsibilities.
98. See M. Galanter and T. Palay, 'The Transformation of the Big Law Firm' in Nelson, Trubek, and Solomon, op. cit., n. 22, at p. 54 and their review of earlier United States research in the area.
99. B. Melendez, ABA Young Lawyers Dvision Survey: Career Satisfaction (2000) at &langhttp://www.abanet.org/yld/satisfaction_800.doc〉.
100. Boston Bar Association Task Force on Professional Fulfillment, Expectations, Reality and Recommendations for Change (1.997) at 〈http://www.boston.bar.org/prs/ reports.htm〉.
101. One was a partner in a large City firm, one was an associate in a large provincial firm, another had just retired from a high-street practice specializing in non-contentious work, and the final one had worked 'at her husband's' firm as she described it. The other participants talked extensively about the stress they endured, at times at the expense of their physical and mental health, their family life, from the enormous burden of responsibility they felt towards their clients and their firms. There is insufficient space to discuss this in. detail here, but it was one of the reasons why two of our participants had left work as a solicitor to become school teachers. Both reported lower levels of stress as a result, and noted that their personalities had reverted to their pre-law, more carefree days.
102. This is not a finding limited to the United Kingdom experience. See Rhode, op. cit., n. 1.5, at p. 11, and J. Henning, Maximising Law Firm Profitability: Hiring, Training and Productive Lawyers (1993).
103. Boston Bar Association, Report of the Boston Bar Association Task Force on Professional Fulfillment (2003) at 〈http://www.bostonbar.org/ prs/fulfillment.htm〉 6-7.
104. R. Nelson and D. Trubek, 'Arenas of Professionalism: The Professional Ideologies of Lawyers in Context' in Nelson, Trubek, and Solomon, op. cit., n. 22, at pp. 208-9.
105. R. Moorhead, 'Legal Aid and the Decline of Private Practice; Blue Murder or Toxic Job?' (2004) 11 International J. of the Legal Profession 159.
106. However, see R. Abel, 'Constructing the Professional Commodity' in his American Lawyers (1989) for a fuller discussion about the factors that create the notion of legal professionalism.
107. See D. Clementi, Report of the Review of the Regulatory Framework for Legal Services in England and Wales (2004), downloadable at 〈http://www.legal-servicesreview.org.uk/content/report/index.htm〉
108. Sommerlad, op. cit., n. 36, at p. 217.
109. See A. Gellis, 'Great Expectations of Women in the Legal Profession, a Commentary on State Studies' (1991) 66 Indiana Law J. 941, at 962.
110. For a discussion see Thornton, op. cit., n. 17, at pp. 158-62.
111. id., at p. 153.
112. Although see research by Richard Collier indicating that male solicitors also feel under pressure with the difficulty of balancing family and work: Collier, op. cit., n. 26. See, too, R. Collier, 'Work-life balance: ladies only?' The Lawyer, 23 May 2005, 33.
113. See Menkel-Meadow, op. cit., n. 7.
114. See Catalyst, Women in Law: Making the Case (2001) research undertaken by Catalyst and sponsored by Columbia University School of Law, Harvard Law School, the University of California at Berkley Law School, the University of Michigan Law School, and Yale Law School.
115. The research was conducted through a detailed survey of 6,300 graduates from the participating schools from, the classes of 1970-1999 with a response rate of 24 per cent. The research also involved interviews and focus groups with 21 lawyers from a representative sample.
116. Sommerlad and Sanderson have suggested strategies in this respect, op. cit. (1997), n. 2.
117. See, too, Duff and Webley, op. cit., n. 3 for further details of strategies suggested by participants in this study.
118. For reasons of space we have not included our participants' views on part-time and flexible working practices. These may be found in Duff and Webley, id. and in a subsequent article that will focus on this issue.
119. See R. Korzec, 'Working on the "Mommy Track": Motherhood and Women Lawyers' (1997) 8 Hastings Women's Law J. 117, at 136.
120. Sommerlad and Sanderson, op. cit. (1998), n. 2.
121. Collier, op. cit., n. 70.
122. See Collier, op. cit., n, 15. See, further, English, op. cit., n. 14.
123. See, further, Fuchs Epstein et al., op. cit., n. 14;
124. E. Burton, 'More Glass Ceilings Than Open Doors: Women as Outsiders in the Legal Profession' (1996-7) 65 Fordham Law Rev. 565;
125. C. Fuchs Epstein, 'Women in the Legal Profession at the Turn of the Twenty-First Century: Assessing Glass Ceilings and Open. Doors' (2000-1) 49 Kansas Law Rev. 733.
126. See Mossman, op. cit., n. 14, at p. 293.
127. Rhode, op. cit., n. 15, at p. 13. This lecture, published as an article, provides a detailed analysis of the profit versus wider values tension in the United States legal, profession.
128. For a discussion, see D. Myers, The Pursuit of Happiness (1993) at 133-4.
129. This point is also raised by Rhode, id., at p. 6.