Either the legal profession has a problem with women, or women have a problem with the legal profession. Most likely, it’s both. Unlike other fields, like engineering for example, more women study law than men and the numbers of been skewed that way for at least two decades. The gender composition changes gradually as lawyers move through the ranks and then changes, starkly, towards the pointy end.
While 61% of law graduates are female, if 20% of any firm’s partners are women it will be ahead of its peers. The percentage of female equity partners – the crème da le crème in any law firm – is far smaller again. As someone who worked inside law firms and then wrote about them for several years, I am familiar with this picture. I am familiar with the fact the dial has barely budged and I am familiar with the reasons why. I am also familiar with the conversation about women in the law because it has been taking place for years.
Last Friday the findings from the first national study into gender and attrition commissioned by the Law Council of Australia were released. I didn’t need to read the report to know what it found; comments, tweets and headlines from various lawyers and journalists said enough. Law remains dominated by men, particularly in the senior ranks. Inflexibility and bias impede female lawyers. Women leave the legal profession in droves. The predictability of it all is disconcerting but, personally, what I find most demoralising is the conclusion that the law remains a “men’s only club”.
A few years ago I wrote about a lawyer who sued her employer for defamation, sexual harassment and victimisation and the dynamics that surrounded the case. The report on Friday indicates what I wrote then is still, disappointingly, relevant today.
“The irony is blatant. On the same morning that a freshly commissioned report from the NSW Law Society on advancing women in the legal profession lands on my desk, I am drawn to a story in The Sydney Morning Herald.
Brimming with optimism and goodwill the Law Society report tackles a systemic issue confronting the profession. In stark contrast, the SMH article is laced with lurid details of conduct that is symptomatic of the very problem others are trying to fix.
A female lawyer, Bridgette Styles, sued her former employer, a large commercial law firm, and a former colleague for defamation, sexual harassment and victimisation. The firm and the colleague denied her claims. Because the case settled out of court, the full details of the affair are not known.
However, the earlier judgment on pleadings makes it evident that unsavoury and improper conduct took place. One email in particular, sent by the former colleague, was so lewd that Justice McCallum wrote “the author is clearly no feminist” and expressed surprise the remarks were made at all, let alone recorded by a lawyer in an email.
That this transpired in a workplace relations legal practice filled with professionals charged with the responsibility of training various corporate clients on appropriate workplace conduct adds to the shame of the case.
The incident is sad and maddening but unfortunately not entirely surprising. The reality is bad behaviour is tolerated by law firms, no matter how much they try to persuade outsiders – and even insiders – that this isn’t so. Most employees behave impeccably but a select and powerful few do not and this bad behaviour is tolerated on the basis of the individual’s ability to generate revenue.
Conduct of an unsavoury nature, as revealed in the early judgment on pleadings, is obviously not the only reason women remain under-represented in senior roles in the legal profession. But it is part of the story and it’s costly.
It doesn’t make sense for firms, individuals or the government to pour money and resources into educating and training female lawyers, for them to walk away. But walk away they do.
And when women walk away, they leave younger women in their wake, without role models in senior positions to inspire them and without anyone to tackle the deep-seated cultural issues which, in part, contribute to their exit.
It’s a vicious cycle.
The other reason this case matters is because being a member of a profession carries with it responsibilities commensurate with that privilege. Lawyers are, and should be, held to a higher standard of conduct than other members of the public. Lawyers should condemn, not condone, improper behaviour.
As a summer clerk, a graduate and a lawyer, in three national firms, in a variety of practice groups, I witnessed a spectrum of behaviour that was unbecoming of adolescents, let alone professional adults. Swearing, yelling, inappropriate propositions, aggression and bullying were visible to varying degrees in all three firms.
The worst incident was a male partner directly asking a female clerk to sleep with him. She refused and could do so without fear for her career because she already had a job offer at another firm. Many times in the intervening years I’ve wondered how other junior females have responded to that request. I have no doubt it’s been tabled many times since.
I wonder if any complaints have ever been made about that individual. Neither my colleague nor I complained at the time because while the behaviour is quietly accepted, speaking out is not.
The case in question demonstrates that this approach persists. The male lawyer, who was revealed to have sent a highly offensive email, was promoted to a senior associate role in the midst of these proceedings and remained an employee of the firm.
Styles no longer works for the firm and in my own conversations with journalists and lawyers, her motives for starting legal proceedings are inevitably greeted with some scepticism. “Isn’t she just a disgruntled female seeking revenge and money?”
That question in itself is telling. While his behaviour is defended at great cost (his employer engaged another large commercial firm to defend them), Styles’ is questioned. Bringing legal action against a large and formidable partnership is not for the faint-hearted and a settlement cheque is unlikely to be the sole motivation for doing so.
She was within her legal rights to pursue action, she has achieved a result and is brave for doing so. In light of its stance on progressing female lawyers, ideally the profession would support an action like Styles’s rather than quietly reproaching it.
Until the chasm between rhetoric and reality is recognised and dealt with, women will continue to abandon the profession. A culture of silently accepting unacceptable behaviour will make that certain.”
To me that case and the way it was reported and dealt with, shone a light on the subversive attitudes towards women that remain entrenched in too many quarters of the legal profession. Until those attitudes, and the behaviour those attitudes allow to flourish, are addressed change will not come. The upper echelons of the legal profession will remain almost exclusively populated by men and women will continue to leave the law. That’s why, to my mind, the only ‘surprising’ thing about Friday’s report is if it genuinely surprised anyone.