The Plight of Law’s Super Girl: Confronting the Divide between Student Perception and Professional Reality in Corporate Legal Practice*

Introduction

Women are both entering and leaving corporate legal practice in significant numbers. Young women are prominent and successful at Australian law schools. The Honours Boards at those schools are replete with the names of academically successful young women, and it goes without saying that women also participate successfully in extra-curricular law school activities, such as mooting and student societies. At least some of these women will go on to take up positions at leading corporate law firms on good starting salaries. Yet women are generally under represented in the senior echelons of the legal profession (with some notable exceptions at the very top end, such as Chief Justice Marilyn Warren of the Victorian Supreme Court, and Chief Justice Diane Bryant of the Federal Family Court and three female Justices of the High Court of Australia). Women lawyers are ‘clustered at the entry and associate levels and are generally leaving law firms without becoming partners’.[1] Female law graduates are more likely to be ‘working part-time, to have a lower income, to be absent from the workforce (on a temporary or permanent basis) and to have lower status occupations’.[2] Thus, it might be said that women pursuing corporate legal practice move from super girl to the invisible woman.

There are a number of factors affecting the attrition of young women lawyers from corporate legal practice. Primarily, they relate to the workplace structure and culture of most corporate law firms, including gender bias, inflexible work practices, heavy workloads, long hours and high stress levels.[3] These issues tend, in particular, to confront women at the time when they opt to have children and seek to combine parenting duties with legal practice.

Perhaps unsurprisingly, law students show little perception of, or interest in, these concerns. We have noticed that some law students tend rather to deify the corporate legal culture represented in the media, which inevitably presents law firms as populated by glamorous and successful male and female lawyers successfully managing their careers. In this paper we examine the disjunction between female law students’ expectations of their future career in commercial law and the realities of commercial legal practice. We then make some suggestions regarding the responsibilities of law firms and law schools in addressing this dilemma.

Discourse is deceptive

Our perception is that the discourse of law students perpetuates a mythology whereby corporate legal practice is one of the highest status and most valued form of career path for the ambitious young person. Legal careers where there are a higher proportion of women, such as community legal practice, academic (lower echelons), government or regulatory work and corporate ‘in-house’ counsel, are not perceived to be as prestigious as corporate legal practice or being a barrister. There is a very apt parallel with the medical profession; being a nurse or general practitioner is worthy, being a surgeon or a specialist is prestigious. Many law students perceive being in corporate practice as the best use of their intellectual talents and as bringing them the greatest rewards.  Certainly, this is not the view of all students. But interestingly, those students who see themselves as pursuing a different type of career often classify themselves as either lacking ambition or as ‘alternative’, thus indicating the strength of the dominant corporate law paradigm.

Students’ perception about the relative merits of corporate practice might be referable to public images of lawyers.[4] Popular television shows about lawyers typically present materially successful lawyers engaged in intellectually challenging and often socially meaningful litigation. Both male and female lawyers are well represented in these shows. Families are often absent or, if portrayed, are neatly contained in the private sphere separate from professional life.  Promotional material for law schools follows a similar pattern. Marketing material for Australian law schools frequently portrays successful graduates as working in either the commercial sector, or as high-flying international human rights champions. Neither are particularly realistic representations of the range of legal careers open to law graduates, and certainly are not accurate reflections of the career paths of most mid-career female graduates.

Students believe the rhetoric of gender equality

A recent study of the career expectations and aspirations of law students indicates very little difference in the perceptions of male and female law students about the realities of legal practice.[5] The law students surveyed show little concern about issues of gender equality or of combining work with parenting responsibilities in legal practice.[6] Of the first year law students surveyed, 55% were currently considering a career in the law, while another 42% said they ‘may consider’ a law career, demonstrating that most students who start studying law have some genuine interest in practicing law.[7] While most first year law students rated law as having a “high workload”, they expected that a legal career would offer them high status and income, as well as providing a challenging, stimulating work environment with opportunities for advancement and to contribute to society. This suggests that law students believe corporate legal practice is a ‘competitive meritocracy’[8] where they can be rewarded for hard work and talent. These are worthwhile ideals.  However, the reality is somewhat different.

The under-representation of women in corporate legal practice

Women figure prominently in the student demographics in Australian law schools, with estimates that around 60% of law students are female.[9] Women also account for about 45 % of all solicitors in NSW and in Victoria.[10] Yet women only account for around 19% of barristers[11] and 19.5% of partners in private law firms.[12] Clearly, there is dramatic attrition of young women from legal practice in the years between graduation and partnership.

Women change their career for a number of different reasons.[13] It appears that some graduates of both genders leave legal practice simply because they do not like being a lawyer.[14] Other reasons for the attrition of women from legal practice coalesce around the issues of the male dominated culture and workplace inflexibility of many corporate law firms. There are numerous reports of discrimination and harassment of women lawyers.[15] There may also be a deep-seated distrust in the minds of some male lawyers about the ability of women to practice law. In her study of women in the legal profession, Professor Margaret Thornton argued that ‘women have not been fully accepted as citizens of the jurisprudential community because of the way the feminine has been constructed in the western intellectual tradition’.[16] She suggested that women are still perceived as lacking the intellectual qualities needed to practice law, describing a form of corporate ‘biological determinism’.[17]

Another factor affecting the attrition of women from corporate law firms relates to the difficulty of combining private legal practice as it is currently structured, with family and carer responsibilities.[18] This difficulty arises not from some inherent conflict of sensibilities required in these spheres but from the way in which the ideal of the legal professional has been constructed in corporate legal practice. Economic pressures on law firms have ‘placed a premium on maximizing billable hours and on developing new business’.[19] High billing requires long hours worked and a willingness to be available virtually on demand. The ideal lawyer in private corporate practice has come to be conceived as a person with a ‘single minded immersion in professional work’.[20] This is a person committed to the law firm, available for work at all hours and without any competing responsibility for home or private life.[21] It may be added that a supportive life partner is an added bonus to this characterisation.

Although appearing gender neutral, the ideal of the committed professional lawyer has reflected a person who is more commonly male than female.[22] While a model of equal sharing between parents of childcare responsibilities might be highly desirable, in many households it is not currently the case. Women typically bear the major responsibility for caring for children within a ‘traditional’ family.[23] A woman lawyer with responsibilities for raising children will find it difficult to fulfill those responsibilities while also meeting the level of commitment required by many corporate law firms. This level of commitment virtually denies the possibility of any form of participative parenting by its lawyers. Instead, lawyers in corporate legal practice are asked to act like the traditional absent father and delegate substantial responsibility for their raising their children to someone else, such as their life partner, or outsourcing the responsibilities to a nanny or other carer.

Periodically, the legal press and general media will laud particular firms or workplaces for ‘accommodating’ women, [24] and developing a more flexible work environment, but in our view this only serves to emphasise the dominance of the mainstream model of who can be a serious, committed lawyer. Allowing women lawyers to work from home or ‘part-time’ doesn’t confront the inherently inflexible structure of corporate practice that equates time spent in the office with professional merit. It merely grants a ‘concession’ from this model. The reality of flexible and part-time work in this environment needs to be assessed in an accurate context. A 2001 survey by Victorian Women Lawyers found that, in the majority of firms surveyed, full-time lawyers work 9 – 10 hours a day.[25] If lawyers in corporate law firms work 60 to 80 hours a week, part-time work might merely be close to the equivalent of the classic full-time 40-hour working week.[26] This type of approach in no way represents an imaginative and creative reconceptualisation of the contemporary relationship between work and home life.

Programs allowing workplace flexibility and part time work can also sideline those lawyers who opt to participate in such programs. Margaret Thornton and Joanne Bagust argue that the concept of a ‘work life balance’ in law firms has ‘assumed a gendered hue’.[27] They argue that strategies such as flexible work may be invoked to ‘reify conventional understandings of the feminine to the disadvantage of women’.[28] If, as suggested, the ideal professional is a person with a full-time commitment to legal practice, then the decision of a lawyer to work part-time may be interpreted by the law firm as signaling an lack of commitment, and hence of merit, in the conventional understanding of those organisations.[29]

Consistent with this, in 2000, Juliet Bourke’s study of women in the legal and finance professions reported that part-time workers were allocated work that was ‘marginal, less prestigious and less challenging’.[30] Similarly, a 2005 Victorian Women Lawyers study of solicitors employed on more flexible work schedules in both private and public sectors found that there were real barriers to the genuine acceptance of these practices in terms of workplace culture and expectations.[31] Lawyers using flexible work practices considered that they did not receive a high level of organisational support.[32] Only 44% of these lawyers agreed that it was possible to work flexibly and to have a career within their organisation. [33] An earlier study by Victoria Women Lawyers reported that most firms had reservations about the possibility of part time partners.[34]

Why is the under-representation of women in corporate legal practice an issue?

The low numbers of women remaining in corporate legal practice should be an issue of concern to the legal community. There are significant costs in the attrition of women from private practice. For women, as with men, there is a considerable investment of time and energy in legal education and the early years of practice. For firms, the attrition of women from private practice represents costs in the form of replacing solicitors and in the loss of continuity with clients. A study by the Victorian Law Foundation in 1998, estimated that the cost of replacing a 4^th year solicitor ranged from $61,400 for a small firm, to $71,600 for a medium firm, and $100,000 for a large firm.[35] At some point, the under-representation of women in corporate legal practice may become an issue for clients, who expect better gender equality.[36] The under-representation of women in the legal profession also represents the loss of a considerable pool of legal talent. The under-representation of women in legal practice deprives the law firms of a significant cohort of legal practitioners, who would mentor younger women, and become leaders in their own firms, and in the profession generally. It also means a smaller pool from which to draw judges and other leading members of the legal community. Potentially, the low representation of women in the legal profession means a perception of systematic gender bias in the legal system.

Illuminate different choices

Ideally, the profession should itself address the under-representation of women within its ranks. This should involve an imaginative reconceptualising of workplace structure and culture. Firms need to develop supportive structures for lawyers moving in and out of the profession. They also need to consider different ways of measuring commitment and merit other than time spent in the office. Impetus for this change must come from within the profession. Certainly, women lawyers’ and barristers’ associations throughout Australia have a focus on the issues facing women lawyers and some law firms also have various initiatives in place for women lawyers, some successful, others less so.

We suggest that law schools (and student societies and representative bodies) should also recognise a responsibility to engage with the issue. Law schools might make a commitment to engage in a genuine dialogue with law students about the reasons for the under-representation of women in the legal profession, and indeed the lack of diversity in the profession generally. Better awareness of the possible hurdles facing women in corporate legal practice might allow young women lawyers to make more informed decisions about their career paths. Such awareness might assist women to make choices early in their careers that give them a greater range of flexible career options further down the track, and might also lead to greater structural change as young lawyers start using the proportion of women partners, or even overall awareness of gender issues, as relevant factors in selecting where they will work. [37]

Of course, merely raising issues relating to work choices and work-family balance may not change young female law students’ perceptions of legal practice. The myth of commercial legal practice as high status, lucrative and intellectually challenging is very attractive.  Issues of family responsibility and commitment are unlikely to be on the agenda, or to seriously impact on the choices, of young students and young graduates upon entry into the profession. Our impression is that law students underestimate the causes of the low representation of women in private practice. Many female law students appear to assume that they can overcome any hurdles to success in the law through sheer talent and determination.[38] It may be that the issues surrounding the under-representation of women in the legal profession need to be embedded in a genuine feminist discourse about structural inequality in the professions generally.[39] In this way, university curricula might better expose the systemic gender bias inherent in many models of the ‘professional’ in modern society.[40]

We have already noted that the role of the law school in influencing the expectations of its students goes way beyond the influence of its lecturers. Law students may be influenced by other factors within the law school, such as the images portrayed in advertising by the law school and by various promotional events sponsored by law firms (particularly in conjunction with the student representative bodies) which provide students with models of what it means to be a lawyer. Accordingly, it is important that law schools, law teachers and law student bodies think carefully about the images being presented to students. Legal careers outside conventional corporate legal practice where there is often a greater proportion of women practicing, government work, community legal centres, NGOs, ‘not for profit’ organisations, and in-house corporate counsel, should be included in law school promotional material and not marginalised as somehow being ‘alternative’ or outside the mainstream. It goes without saying, that these careers offer their own challenges and rewards. Many of them also offer the possibility of more genuinely flexible and diverse workplaces. Representatives from these areas of legal practice should also be given a role in law school and student career events. Their participation should be genuine and central, not just part of an ‘add-on’ to mainstream events.

It is of course possible that many law students do not contemplate a traditional linear career progression within a single work place at all. They might contemplate a career full of changes in direction and location. There are many benefits in working in corporate legal practice: financial reward, intellectual stimulation, commercial experience, networking opportunities, and friendships. Law graduates may experience these benefits by working in one place for a few years and then moving on to different workplaces and environments. There are many opportunities that may open up for graduates following a few years of experience in private practice in a large firm. In this sense, the attrition of women from private practice might be symptomatic of a new trend in career aspirations of law students. But the point is that the best sorts of choices are informed choices. If young lawyers enter the profession with a relatively realistic vision of the opportunities available to them and the hurdles they may face, they are in a better position to make the choices about the work-life balance they will pursue through different stages of their careers.

Conclusion

While increasing numbers of women are studying law, women remain under-represented in the senior ranks of the legal profession. One factor influencing the participation of women in corporate legal practice is a conception of the legal professional as a person with a single-minded commitment to the firm. Many law schools properly promote participation in the legal profession as a reason for studying law. The full story should also involve a discussion with students about the range of possible work practices available to them in the law and a commitment to promoting a range of representations of legal practice in law school culture. In this way might finally see concern with the inevitable progression of super girl to invisible women replaced with a critical analysis of the very structure of certain forms of legal practice.