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Kristen Liesch

Gender equality in private practice: You’re going about it the wrong way

We hear a lot about gender equality these days, particularly in the context of Silicon Valley and its so-called “bro culture” problems. Private practice has its own set of issues when it comes to gender equality; the retention of female associates has always been a challenge. Research shows that nine per cent of women in the Canadian legal profession leave within 16 months, while another 55 per cent leave within 4.5 years.

The cost of this exodus far exceeds the basic loss associated with turnover (estimated at US$400,000 per associate). This rate of attrition means:

  • ●Missed contributions of experienced lawyers;
  • ●Instability of departments and teams;
  • ●Disruption to trusted relations between lawyers and clients; and
  • ●Loss of proficiency.

These are not the only reasons firms are making renewed efforts to solve the gender equality problem. Other motivators include:

  • ●Effective succession planning;
  • ●Responsiveness to client demands;
  • ●Anticipation of industry changes and the introduction of disruptive artificial intelligence technologies;
  • ●Responsiveness to labour force changes and the expectations of millennial workers (who will comprise 75 per cent of the workforce by 2025); and
  • ●Class action litigation associated with gender pay discrepancy.

Despite the many factors encouraging firms to take action on their gender equality challenges, progress is painfully slow. One leader expressed their dismay about the lack of measurable results at their firm. Their firm has been taking gender equality seriously — focusing on the retention and promotion of female associates — for more than a decade. They have numerous initiatives in place: mentorship programming, affinity networks and work-life balance schemes, flexible full-time and part-time models and diversity committees.

None of these strategies is moving the needle.

However, as far as the research is concerned, none of these strategies should be expected to move the needle. Strategies including affinity groups and diversity committees help foster a sense of belonging and community support. Some initiatives — such as work-life balance schemes and flexible working arrangements — have a measurable effect on gender equality in some industries. But the legal industry is another kettle of fish.

The barriers women face in the legal setting are systemic in nature, and recent studies are showing that a systems-based approach can be successful in dismantling them.

Firms interested in taking a bite out of their gender equality problems need to consider factors including the following:

1. File assignment quality

Female lawyers are more likely to be given assignments below their level of experience and expertise, and they are also more likely than male lawyers to be excluded from important files. When they are given inferior files, female lawyers miss out on the opportunity to develop personal relationships, log high-status work experience and practise advocacy skills — not to mention the performance reviews — that go along with superior assignments.

To increase the likelihood that female associates are given equal assignments, on average, a firm can take one of two approaches. At the French law firm TAJ, partner Gianmarco Monsellato personally oversees the delegation of work to ensure that the best assignments are evenly distributed to male and female lawyers. The New York-based international law firm Skadden has taken a systematic approach and “organized processes” for regulating the assignment of work.

2. Sponsorship programming

Most firms today have a mentorship program; however, there is a lack of empirical evidence that mentoring is successful in the legal profession. Mentorship schemes don’t always feature training and quality assurance mechanisms or a means for measuring their effectiveness. They can even backfire. When senior female lawyers are asked to mentor junior associates, time is taken away from their billable hours in a scenario that already sees women clocking fewer billable hours and contributing more hours to non-billable but essential firm functions. Furthermore, research suggests that when female mentors recommend female mentees for partnership, their recommendation is discounted because it is perceived as simply a case of one woman looking out for another (which is, itself, an unlikely motivation).

Sponsorship is a promising alternative to mentorship. A sponsor is “someone with clout who actively advocates on your behalf at the decision-making table, putting your name forward for promotions and highly visible opportunities.” And cross-gender pairings are most successful. Studies show when female lawyers are paired with senior male partners, they have higher compensation, higher career progress satisfaction and are more likely to be partners or senior executives.

3. Partnership pathway transparency

The partnership pathway is often shrouded in subjectivity and vague criteria. Furthermore, the effects of implicit biases and stereotypes — combined with the subjective nature of the evaluation process — discourages female associates. Improving communication regarding partnership prospects is one way proven to increase retention. Research suggests promotions are more gender equal and of higher quality when a firm can create a skills competency framework that serves to inspire and guide associates by providing measurable, actionable criteria for partnership considerations.

In addition, studies show that taking the following steps can also increase representation and retention of female lawyers:

  • ●Increase quality and quantity of feedback and evaluations (see here, here and here);
  • ●Tackle the billable hour model (evidence confirms women work longer hours but spend a greater proportion of their time on non-billable but essential tasks);
  • ●Bring mothers back (women who take parental leave then return to their firm are 45-per-cent less likely to depart from private practice than their peers); and
  • ●Include women and associates on compensation committees (see here).

Firms face these issues to different degrees. There is no silver bullet when it comes to gender equality. However, implementing a data-driven, research-based intervention nudges a firm closer to this objective.

Dr. Kristen Liesch (BEd, PGradDip, PhD) is Blue Switch Consulting’s principal talent optimization consultant with practices in Canada and New Zealand.

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