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Child-rearing duties usually cop the blame, but there are other deep issues that need addressing if more women are to reach the top echelons of our law firms, writes Cameron Cooper.For the past two or three decades, most of the law graduates streaming out of Australian universities have been women. Women currently make up about two-thirds of graduates.In fact, anecdotal evidence suggests secondary school students now view the study of law as “something girls do”, according to Kriss Will, managing director of Kriss Will Consulting, a human resources advisor to a number of leading law firms. “Feminisation of the legal profession will continue to have an impact on all aspects of the legal profession. Sixty per cent of lawyers with fewer than five years’ practice are women. In Victoria, 63 per cent of all employee lawyers under 40 are female. The impact of child birth and rearing on these professionals will have an even greater impact on law firm structures, cultures, work practices and norms as the number of women increases.”That said, why are we not seeing a surge in numbers at a senior level? Family factors have long been held as the reason, but Fiona McLeod, a Senior Counsel at the Victorian Bar, argues it may be more than that. “The rapid drop-off of women (in law) comes at around five to seven years, both in solicitors’ ranks and at the Bar, and it’s never corrected – it never bounces back again,” she says. “We know a number of things that suggest it might not just be for family reasons.”Band-Aid solutionsMcLeod is the Victorian Bar’s nominated director on the Law Council of Australia and chairs its Equalising Opportunities in the Law Committee. She cites a number of key issues contributing to the female exodus, stating that “unless you actually look at the key motivations for women leaving the law, then you’re sort of putting Band-Aids on top of the sore and not really getting to the heart of it”.There are a number of myths and problems surrounding the issue of women in the law, according to McLeod. First, she highlights a persisting assumption about women’s capacity and appetite for certain types of legal work.“We still see gross stereotyping about the type of work that’s allocated to junior lawyers,” McLeod says. “There are individuals who might break through, say, in an area of construction law, which has been traditionally male dominated, but they are the unique individual. And often that’s the lucrative work.”Second, she argues that law firms and the Bar must do a lot more to offer real flexibility during the critical years when women take on caring responsibilities for children. “Although there’s a lot of talk about the need for flexible workplaces, it has ended up with those women taking those arrangements being marginalised and vulnerable to changes in workplaces where work shifts and ebbs and flows.”Third, there is an ongoing culture in some firms tolerating harassment and bullying of younger staff by high-income-producing partners. And fourth, many female lawyers confront the dilemma of losing touch and confidence when they are away from work for an extended period. “They need both financial support and the collegiality of firms and the Bars and of their colleagues to encourage them back to work,” McLeod says. “(But) we don’t have very strong systems in place that I’ve seen.”McLeod says many firms claim to be committed to addressing the issue of low female representation at partner levels, “but I’ve heard as many horror stories as I’ve heard good intentions”. “The loss of women from the profession quite blatantly represents a direct loss of talent,” she says. “You have a loss of the voice of the women in shaping the law and in its application. You have a loss of the time and money invested in training those women. And you have an absence of role models for aspiring young men and women.”This loss of female talent from the profession also impacts on the ability of rural areas to attract and retain lawyers, while it also restricts the ability of those needing access to legal services to choose women lawyers. “So there are direct economic and social costs of our failure to encourage women into senior levels,” McLeod says.‘Culture of visibility’Dr Liz Bishop, a lecturer at the Michael Kirby Centre for Public Health and Human Rights at Monash University, wrote her PhD on women in the law and the formation of associations to raise awareness about gender issues in the profession. Her thesis examined women in the Victorian legal profession from 1996 to 2006, and considered whether there had been any over-arching career advancement by women in that time.Bishop says gender equality is illusory at the upper levels of the legal profession for various reasons, including workplace culture and ‘mummy tracking’, the phenomenon which acknowledges that women are typically the prime carers for children and that their careers often fit around their family. “One thing the legal profession still has that others may have moved away from is the culture of visibility,” she says. “That acts against the mummy trackers in the sense that if they want to work more flexible hours then they’re not seen to be in the office at the appropriate times. And if they’re not doing that they’re not going to be perceived as being the really conscientious, ideal worker.”While they are controversial, Bishop is in favour of gender quotas mandating that women comprise a certain percentage of law firm partners or judges, for example. So long as they are implemented properly, she believes they could go some way to addressing the dearth of women at the top of the legal ranks. She cites the Victorian Government as a leader in this regard.“The Victorian Government said if you want to get legal work from us you must demonstrate that you are briefing a certain number of women barristers, that you must have women progressing within your law firms, etcetera. It did bring about change,” Bishop says. She concedes, though, that there are still ways of getting around such quotas. “They were certainly briefing more women barristers, but the women barristers they were briefing were actually getting the smaller, less-well-paid briefs.”Merit mattersThe role of government can go beyond ensuring quotas exist in public sector work to other initiatives such as promoting better paid parental leave schemes, according to Bishop. Debate also needs to occur around the concept of ‘merit’ and the appointment of senior public officials such as Supreme Court judges.“The most-used term that we have in the law for appointment is ‘merit’ … I would argue that we need a different system because ‘merit’ is just so overladen with what the legal profession sees as merit, which is basically a white, middle-class male from a really good school.”Bishop says law firms also need to understand that providing more flexible work arrangements can benefit the firm, too. She says women provided with effective flexible work options have told her they feel a greater level of commitment to their employer. “Therefore, in this period, they were happier to take calls at home and outside of hours, and to give flexibility back. That is the key to making a flexible working arrangement work well.”As the gender issue evolves in the legal profession, Will has no doubt that there will be a greater requirement for flexible working arrangements. Law firms will need to find ways to effectively and productively manage “non-fulltime in the office” working arrangements and client service delivery models. “If change does not take place across the profession, women lawyers will seek alternative employment opportunities, adding to the existing retention issues,” she says. “Those firms which can create work practices and service delivery structures that marry good client service, flexible work practices and profitability will be streets ahead of those who do not.”Courting changeMcLeod says the Bar presents particular challenges for women because of the long hours on call and difficulties with setting aside specific days for work. In most cases, barristers are at the mercy of clients and the timeframes of courts.“And there’s also a fairly entrenched assumption about how we conduct practice, so cases have to be heard in a particular continuous run rather than blocks of time. With litigation, the assumption is that it requires you to be on call 24 hours, and there’s an attitude of ‘that’s how litigation has to be so if you want to work in that field that’s just too bad’.”The Law Council of Australia is committed to a national attrition study that for the first time seeks to capture the views of those who have left the profession as well as those working currently as lawyers.“That will permit us to target some precise strategies around the reason why women have left and why women are unhappy in the profession,” McLeod says. “The Law Council has also been a strong supporter in the past of model briefing policies and a raft of other measures that we’ve adopted and are asking the constituent bodies to implement following the national Court Appearance Survey a couple of years ago.”She urges law firms, agencies and corporate entities to look at the strategic plan developed as the result of that survey and to see how they can apply it to their own practices. “It takes persistence, it takes patience and continued pressure for change to come from all lawyers, not just women lawyers, if we want to change the environment,” McLeod says. “We should be supporting each other and promoting each other’s talents and that’s vital to seeing women progress to levels of seniority. And my suggestion to women would be that they don’t take any rubbish from anyone.”As far as recruitment and making money goes, effective strategies to have women at the top will pay off for firms, according to McLeod. “It makes good sense in your marketing if you can say to recruits you have systems in place to support people during career breaks,” she says. “And it’s certainly good marketing to clients to say you support diversity in your workplace.”

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