Every few months or so, Toronto lawyer Sara Gottlieb gets together for brunch with her Osgoode Hall Law School friends from a decade ago. There are 10 of them, all women, and although they all started out in coveted jobs in private practice, only one remains. The nine others have traded the punishing pace and unworkable lifestyle for positions as in-house lawyers with companies or public institutions.
“Everyone has left,” Gottlieb (pictured above) says of her gang’s exodus from private firms, where the majority of young lawyers head after being called to the bar.
Now a 35-year-old mother who is pregnant with her second child, Gottlieb says she works at her “soul-mate job” as an in-house lawyer at the University of Toronto. Still, she recalls the rush, as a newly minted lawyer, of working on major files at big firms on Wall Street and then Bay Street, such as advising companies after the fallout from the Lehman Brothers collapse and fraudster Bernie Madoff‘s Ponzi scheme.
“The work is so interesting, and it seems you will never be able to match that quality of work after you leave private practice, but for many people, there are so many intervening factors that you have no choice,” she says.
Gottlieb’s lament is one that plays out in chat groups, coffee shops, law offices and restaurants nationwide in a profession where retaining and promoting women in private practice has been a perennial problem. Their dramatic departure has been well-documented in dozens of reports and studies over the years that have noted a glacial pace of change in a profession where efforts to keep women have stagnated.
While private firms expect attrition, with both women and men leaving in large numbers before they ever make partner, women exit in significantly greater numbers. One longitudinal study of 1,600 lawyers over 20 years, compiled in 2013 for the Law Society of Upper Canada, put the departure rate for women at 52 per cent compared with 35 per cent for men. Some returned, but they were most likely to be men.
The flight appears to be even more acute among criminal lawyers. By 2014, 60 per cent of women who had started out in the business in 1998 had bowed out, compared with 47 per cent of men, according to a 2016 study by the Criminal Lawyers Association.
We have been studying the issue for more than 25 years, yet little has changed. In 1993, the Canadian Bar Association published the first national examination of women in the profession and concluded that law firms were not “environmentally friendly” for women and must lose their “maleness” by overhauling a business model that was long ago built by men for men.
The 326-page report, entitled Touchstones for Change, found that women earned less than men, didn’t advance as quickly, and often felt they had to choose between family and career.
Fast forward a quarter of a century and large swaths of the report could still be written today. While men and women graduate from law school and work side by side as associates in equal numbers, three-quarters of law firm partners are still white men, according to the think tank Catalyst. As U.S. lawyer Mark Cohen puts it on his Legal Mosaic blog: “The concrete barriers for women are now adorned in ivy – the wall remains, but its appearance has been softened.”
While the Touchstones report and subsequent studies helped initiate programs and policies to retain female talent – such as flex time, parental leave, pro-rated billable hours, working from home, sexual harassment policies, and programs to help women stay on the partner track – they haven’t worked in the sense that women are still leaving private practice in droves.
“Significant change takes a long time in a conservative profession,” surmises Kirby Chown, a retired managing partner at McCarthy Tetrault. She theorizes that law lags other industries because it attracts conservative, risk-averse people from society’s upper echelons, many of whom are reluctant to change a system that has worked well for them.
While she agrees with broad sentiment that there are powerful societal and business reasons to stem the flow of female talent walking out the door, she says the motivation at private firms is not strong enough because the profession still works very well for many people who are making a lot of money.
“There is a lot of attention paid to women lawyers dropping out,” Chown contends, but at the same time law is not perceived as “a failing profession where there’s a crisis and therefore we’ve got to change.”
“There are many foot soldiers who are willing to exist in a very traditional model of being a lawyer,” says Chown, who won awards for her efforts to reach out to women during her years at McCarthy’s. What’s more, she says, law firms are run by lawyers, not business people, which is why they are “undermanaged.”
In interviews, women lawyers said they left for a variety of reasons: It’s a boom time for in-house counsel; they wanted to work solo or have more control over their lives. Also, the child-bearing years are viewed as incompatible with the crushing pressure of law firms’ billable-hours model, which requires lawyers to work 10- or 12-hour days and on weekends. Talk of subtle sexism and not fitting the firm’s architecturally embedded male mold was muted, but it persistently hugs the edges of the wider conversation, often in anonymous surveys.
The exit rate in Canada mirrors that of the U.S., where the departure of women has spawned numerous reports, studies, commentary, and even a website called omeninterestedinleavinglaw.com. Most recently, the documentary Balancing the Scales explored five generations of women lawyers over two decades, finding that discrimination has shifted from overt to subtle, but remains ingrained.
While many law firms are making it a point to do a better job of mentoring women lawyers, Chown says “micro discrimination” permeates the profession.
“Law has what I call the golden-boy phenomenon: a hot shot, most-often male who is identified at year one or year two and that person often gets better and better work assignments,” she says. “Then people see him as the boy who should be a partner. Sometimes that’s entirely merited, but often because women don’t present in the same way, they may not be identified in the same way and may be channelled into more routine work.”
Gottlieb, who chairs the CBA’s Women Lawyers Forum, says she never intended, even in law school, to spend her career in private practice. That feeling was cemented in her early years at big firms, where she says senior women lawyers moving up the career ladder “always seemed really stressed out” and failed to inspire her as role models.
“In law school, you are told the best thing you can do for the highest credibility, the highest status, is to take a job with the biggest, most prestigious law firm that will pick you,” says Gottlieb, explaining why she initially chose big law. “If you do that, you will hopefully set yourself up for whatever you want to do next.”
Her chosen “next” gives her the time, flexibility and control over her life that she says she craved as a junior lawyer putting in long hours at a private firm, all the while knowing she did not aspire to board the “hamster wheel” of the partner track.
Gottlieb’s path from private practice to in-house counsel is well-worn. It has been one of the biggest trends in the profession in recent years as corporations and public entities expand their legal pools to counter the rising costs of contracting out legal services to firms. While hourly rates vary widely by region, firm size and years of experience, they range from about $200 for new lawyers to more than $500 for senior lawyers at large firms, according to a voluntary survey by Canadian Lawyer conducted in December and January.
Also, in-house legal needs are escalating as the law becomes increasingly complex and demanding due to an abundance of online information and a spike in litigation. That translates into a bit of a hiring boom that is attracting both men and women. Corporate or public-sector jobs do not carry the pressure of billable hours. The benefits are often better, and some lawyers are drawn to the idea of being part of the team and involved in decisions rather than being on the outside as external counsel. While women are under-represented at private firms, they are over-represented in-house and in government.
“I know a lot of young lawyers and a lot of them are being hired away from private firms by really attractive offers,” says Kathryn Berge, a senior lawyer in Victoria who has spent almost 40 years in private practice. “They might not even have been unhappy, but they get a better offer.”
A report in February confirmed that most in-house counsel are increasing the size of their legal departments. The Counsel Network/Canadian Corporate Counsel Association survey also noted that more junior lawyers were joining in-house counsel – a trend that has corresponded with a slight decrease in the average annual salary, which dipped to $163,000 last year (from $165,000 in 2016). However, the survey also revealed that female in-house lawyers earn 11 per cent less than their male counterparts (an improvement from 15 per cent less in 2016), with a wider gap at the higher wage levels. The salaries are difficult to compare with the private firms, where pay varies widely, depending on region, firm size, year of call and employment status. The CBA’s Women Lawyers Forum plans to survey partners in private practice to measure the wage gap.
In-house counsel and government are not the only landing spots for women who want to leave big law. Others are going solo or starting new ventures. Martine Boucher is one former private-practice lawyer whose business, Simplex Legal, is gaining traction, with offices in four provinces.
Boucher cooked up the idea of her virtual law firm about eight years ago on a Thai beach, during a vacation to “redesign” her life after leaving General Electric. She had moved there as in-house counsel after quitting private practice five years earlier.
“I had almost given up on the practice of law,” says Boucher, who owns Simplex Legal with her partner in life and business, Geoff Best. “I had been practising at that point for almost 15 years and it was not fulfilling me. I felt it was a very narrow field and very demanding.”
She says she now spends about 20 per cent of her time on law, devoting the remainder to running her Calgary-based business, which she calls the “Airbnb of lawyers.”
The firm, which has no offices, employs 18 lawyers who are paid hourly to provide in-house legal services on demand to clients who buy blocks of hours “for a fraction of the going rate,” she says. Some lawyers cover sick leaves or maternity leaves; others may work for years for the same client. There are no minimum billable hours for the firm’s lawyers and most work about three days per week earning hourly pay. Business development is not required; if they do it, they earn bonuses.
“We gave a home to lawyers who were not finding their place for whatever reason,” says Boucher.
By all accounts, it would be unfair to throw private firms under the bus by blaming them solely for the female exodus when women in society at large still carry most of the burden of family and children.
“Having children does coincide with your senior associate or junior partner years, when there are great expectations about what you are to be delivering on the work front,” says Mary Abbott, a partner with Osler, Hoskin and Harcourt, where women comprise 37 per cent of lawyers and 26 per cent of partners. One of the biggest challenges, she says, is helping women lawyers navigate the vulnerable early- to mid-career years.
“Firms are now saying, ‘What can we do to tap into this talent pool?’ versus ‘How are women going to change to be right for us?’” says Abbott, who had her first child in her sixth year of practice and her second when she was a junior partner.
Among other things, Osler has a women’s network and a buddy system of sorts that provides women on maternity leave with an office partner who helps them transition back into the workplace upon return. The firm has also become more flexible in accepting that not everyone aspires to be on the partner track and that there are other satisfying and productive ways in which lawyers can spend their careers at the firm, says Abbott.
Osler, like most other firms, has also changed its business development practices from the days of yore, when lawyers often spent long hours entertaining clients at hockey games, on the golf course or even at strip clubs.
“I ask my clients: ‘Do you want to take your kids to a basketball game? I will send you the tickets; you don’t have to go with me,’” says Abbott.
And there are firms that have succeeded in creating an environment where women can thrive. The Canadian offices of Clyde and Co. were among the first to make real headway, with 50 per cent women in the corner offices and a solid blend of male and female lawyers at every level. Gender parity is “in our DNA,” says partner Carolena Gordon. The firm, formerly known as Nicholl Paskell Mede before it was acquired in 2011, was founded on a manifesto of work-life balance, Gordon says. It had gender parity at its inception, as it was launched when two senior lawyers, one male and one female, left Ogilvy Renault in the early 1990s to start a boutique practice with reduced targets for billable hours.
Another sign the profession has become more gender-inclusive in recent years is the “very, very significant sea change in terms of who the profession is prepared to appoint as leaders,” notes Berge, who chaired the Law Society of British Columbia's Retention of Women in Law Task Force in 2009. More than half of the 30 elected benchers in B.C., the board that oversees the work of the province’s law society, are now women. “That was unimaginable years ago,” she says.
Many of the country’s largest firms have also signed on to national initiatives to increase female ranks in senior positions, including the Law Firm Diversity and Inclusion Network and the 30% Club Canada, whose member firms commit to promoting and achieving diversity, including gender balance. Many are also signatories to the Justicia Project, a law-society initiative in several provinces where firms commit to the retention and advancement of women. But there is no solid indication that these projects have made much of a difference in moving numbers.
It is well established that the road to equality is even steeper for racialized lawyers, particularly racialized women. Hadiya Roderique, who quit a Bay Street private practice several years ago, struck a chord in the legal community last November when she wrote a powerful opinion piece in the Globe and Mail about how she found that “fitting in became harder and harder” as a woman of colour in a business where the ingrained culture was white, male and elitist, and valued sameness.
“I was the acceptable Negro,” wrote Roderique, now a PhD candidate. “I was to be visible yet invisible. I had to make them believe that I was a black girl they could spend two hours in a car with on the way to a hearing in Barrie, Ont., listening and humming to Bob Dylan and talking about summer vacations, when I wanted to sing along with Nina Simone and talk about inequality.” She went on to list the subtle and not-so-subtle discrimination she faced, including a reprimand when she used two fonts on a document, an error that “would get nary a mention for a white, male associate.”
Ultimately, the real motivator for change could be the refusal of companies and public institutions to do business with firms that lack diversity and do not have a mix that includes women lawyers and lawyers of colour.
Osler’s Mary Abbott said it is becoming increasingly mainstream for potential clients, particularly the big financial institutions, to question firms about their diversity policies. “Even if you don’t buy into the idea that you need to ensure women are at the table because otherwise you’re not maximizing your talent pool; even if you don’t think that, you have to because your clients are insisting on it,” says Abbott. “It is a pretty standard ask.”
Clyde & Co's Gordon suspects that the answer to big law’s women problem will ultimately rest with millennials, the oldest of whom are in their early career years. They will be instrumental in forcing law firms to become less rigid, she predicts.
“When I was young, it was a male-female issue,” says Gordon. “Now it’s a cultural issue for an entire generation. They want to work in an environment where people are entitled to a life outside the office, whether it’s to raise a family or climb Mount Everest, or whatever. If you can’t address their needs, they are going to leave you. They look at it as a marriage – and perhaps they should, because both parties have to be happy.”
Janice Tibbetts is a contributor based in Ottawa