Ethics Corner: August 2013

Langford.CarolWhen it comes to discrimination in the legal field, everyone knows that it’s not right, and everyone also knows that it still happens anyway. What everyone doesn’t understand is why it still happens.

According to American Bar Association statistics, 47 percent of all enrolled law students are female and 24 percent are minorities.[1] These numbers tend to echo themselves through the associate stage of law firms, with women making up 45 percent of all associate positions in private practice and minorities making up 20 percent. However, once you move up to the partner stage, women and minorities are dramatically under-represented. Only 20 percent of partners in private practice are female and only 7 percent of them are minorities. Part of this problem is caused by the fact that partners tend to be older and had graduated at a time when there were simply fewer women and minorities in law school. But that’s not the whole story, especially since women have outnumbered men in law school for many years.

There is an ethics protection in place aimed at closing the gap. California Rule of Professional Conduct 2-400 prohibits discriminatory conduct in a law practice. However, the rule is extremely narrow in what it deems unacceptable behavior. Only “unlawful” discrimination based on race or gender is prohibited, as is only “knowingly” permitting it. No mention at all is made of the more subtle and thus “legal” forms of discrimination that can be even more detrimental to the fate of women and minorities in a law firm. Furthermore, the rule requires an absurdly high standard of proof in order for the State Bar to take action. The State Bar will not even investigate against a member “unless and until” a court has entered a final judgment against that member for unlawful conduct. In practice, this leaves the rule without any teeth. Employment suits based on discrimination are extremely difficult to win, as legal employers usually have a plethora of pretexts to hide behind, and even when an employee has a good case, most of the time it ends in a settlement, not a judgment. I have yet to see a single case be brought before the California State Bar in which a lawyer was disciplined due to a discrimination judgment, even with the abysmal partner-track statistics.

In some ways, we have come a long way since the times of open and hostile discrimination in the legal field. Back in the so-called “golden age” of the industry, lawyers were chosen largely based on the social pedigree. As recently as the 1980s, there was still open discrimination against blacks. When Harold Washington, a black man, was elected mayor of Chicago in 1983, he made it clear that the city under his rule would only work with law firms that demonstrated a commitment to diversity. David Wilkins, a Harvard scholar, interviewed several black partners who benefited from this policy directly.[2] Two of them told him that after Washington died unexpectedly in 1987, they were called in by the manager of their firm and asked how they intended to support themselves now that Washington was dead and they could potentially no longer bring in city work; a demonstration of less than a full commitment to diversity.

Compounding the problem is that many junior partners “inherit” clients from senior partners who are retiring and leave the firm. Senior partners are statistically more likely to be white men, who are likely to bond with and thus directly benefit other white men.

But perhaps the biggest explanation for why there aren’t more female partners is the most obvious: For now at least, women have to be the ones to bear children. Studies have shown that even if women simply take off time for maternity leave, they are less likely to make partner. Furthermore, the responsibility of raising the children generally lies on the woman in a marriage, and this can put a great strain on the amount of time she is able to devote to work. Most women cannot put in 80 hours a week at work and still manage responsibilities for their children. Thus, many women are forced by the realities of life to resign their partner track careers and instead take a more relaxed position or even work part time. People who observe this phenomenon call it the “mommy track” instead of the “partner track.”

Stuart Hanlon wrote an article entitled “Getting It,” in which he chronicled his experiences at his firm after his wife died and he became a single father. He had to withdraw as counsel in a very high profile case to take care of his two young children, and was worried there would be backlash against that decision. Not only was there no backlash, he was applauded by people at his firm for “taking the moral high road” and putting his children first. Only then did he realize that if he had been a woman in the same situation, he would not have been lauded as a hero, but instead would have been criticized for not putting his career first. Women are seen as “choosing” to be mothers, whereas he was seen as being forced into the situation and handling it with dignity, even though he, too, chose to have children. This to him was enlightening and embarrassing.

Two things are needed for women to surmount the hurdles that biology places in front of them: A paradigm shift to where society no longer thinks that women need to choose either career or motherhood, and employer-subsidized child care. Unfortunately, in an economy in which many firms have been facing budget cuts, the latter seems unlikely, at least for awhile. But that doesn’t mean we can’t pursue the former. With women beginning to out-earn men, in another 20 years it may be men who complain about bias.

I think only then will we see some real changes in who makes partner.

Carol M. Langford has a practice in State Bar defense and professional licensing issues in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.

[1] American Bar Association, A Current Glance at Women in the Law, February 2013.

[2] David Wilkins, “Partners Without Power? A Preliminary Look at Black Partners in Corporate Law Firms.”



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