A call to action for a better normal

The COVID-19 pandemic is, in many respects, a cataclysmic disruptor. But what if it were a portal to a legal practice without glass ceilings, steel doors, maternal walls and partnership expectations designed for white males with stay-at-home spouses?

Statistics show that women continue to leave this profession, even after joining partnerships, leading firms, and other achievements. Why? Because as mother-lawyers, we do not “fit” the model on which the profession is founded. The American Bar Association, in Walking out the Door, noted the same problems in U.S. BigLaw last year. Only 20 per cent of equity partners are women, versus 50 per cent of lawyers at entry level, and arranging childcare remains women’s work (54 per cent of women versus 1 percent of men said this was their full responsibility).

Stats are one thing. Each of us has a story.

Sharon: I’ve spent 15 years as an interloper in private practice areas dominated by older, mostly white men. I’m the primary caregiver to young children; one needs constant supervision for medical reasons. Pre-pandemic, I practised kitchen table law pre-dawn, at the office during childcare hours. Though exhausting, it was rewarding and productive. It was also largely manageable. Currently, my sense of failure – as mom, partner, advocate – eclipses all but exhaustion. As the pandemic evokes staged collective grieving, the obligations mount while resources shrink (or disappear). Success amid these stressors is, as Justice Jasmine Akbarali once wrote, not quitting law.

Orlagh: As a litigator in public practice, I had three kids in as many years. My career was fulfilling until my third child had severe health problems. The necessary childcare for my career and a child with special needs was unaffordable. The Phoenix pay debacle did not help. I could no longer volunteer overtime hours out of a devotion to public service. Thus, I was reborn as an advocate in private practice until, in a matter of weeks, the pandemic showed up as if to ‘push’ me to walk out the door, again.

Amid the pandemic, we shared a reckoning: we felt invisible despite our valuable skills and experience as litigators and mothers.

But this issue pre-existed COVID-19, its persistence insidious and normalizing. The 1993 CBA Touchstones report identified bias in the legal profession against women, primarily those who chose a family. The problems identified in Touchstones remain today: subjective partnership criteria; gendered work allocation, pay inequities, discriminatory billable hours, cultures “shaped by and for male lawyers.” Existing measures – recommending do-it-yourself fixes, urging our “drive and ambition” to compete, making the gender “business case” – only reinforce the status quo.

COVID-19 has shone a light on this “fit the mold or leave” dilemma. Now, we cannot ignore our children when they are physically in our offices and hearings. Nor should we. The moral imperative and return on investment alone demonstrate the urgency of retaining mother-lawyers in a truly inclusive practice.

Perhaps now, as our male counterparts struggle alongside us (yet in relative isolation) in the parenting, homeschooling and working from home trenches, we can collectively, as a profession, recognize this opportunity as a call to action

Just as COVID-19 is forcing the courts to get with the times, our profession needs to recognize, celebrate and engage women who are parents and frankly all members with caregiving responsibilities. We have an opportunity to catalyze the crisis and ignite real change. Policies and continuing education are not enough. For starters, what’s stopping regulators from mandating reporting on gender equity (such as pay gaps and time to advance to partnership) and firms from adopting transparent compensation models? Why should the legal profession be immune from substantive equality measures and pay equity requirements by which our clients abide? Let’s lead by example, embrace frank dialogue and embark on a collective mission to design a new and better normal.