Time up for old boys’ club?

Yola Verbruggen

Bullying and intimidation occur at ‘alarming levels’ in commercial law firms and diversity policies ‘have been found to be wanting’. Global Insight assesses why there is still so little progress.

A new report has found that a structural review of law firms and real ownership of diversity policies by firm management are crucial to identifying the barriers that continue to impede the progress of women – who often account for less than 20 per cent of equity partners.

The report Women in Commercial Legal Practice by the IBA Legal Policy & Research Unit (LPRU) is based on nearly 6,000 responses to a worldwide survey. It dismisses the term ‘feminisation’ for the changes that have occurred in the legal profession, which it says ‘are designed to help women – and others – fit into the existing workplace rather than reviewing the structure of the workplace that exists to identify inbuilt discriminatory boundaries’.

Carolina Zang, Chair of the IBA Law Firm Management Committee’s Talent and Leadership Working Group, says all voices within firms need to be heard to achieve diversity. ‘Some firms still have to understand the enormous value women can bring and deliver, and we need as many allies as possible to make this happen at all levels. It’s not enough to recognise one voice only some of the time, we must recognise all voices all of the time, especially as we strive to be more authentically inclusive,’ says Zang, who is also the Senior Vice-Chair of the IBA Latin American Regional Forum.

Jane Ellis, former Director of the LPRU, and Ashleigh Buckett, former Legal Advisor for the LPRU, jointly led the research. The overwhelming response was a confirmation, Buckett says, of the genuine interest in diversity. ‘It was not just the responses. You could see from the way people answered the open questions – sometimes entirely in capital letters – their passion for diversity issues. So many people identified with the research,’ she says.

Harassment, bullying and intimidation

Globally, sexual harassment has been well and truly under the spotlight and the legal profession has not remained out of sight. The LPRU’s timely report asked lawyers from around the world about their experiences of harassment and bullying. The results were damning.

The research found ‘alarming levels of bullying and intimidation’ in a profession that prides itself on upholding justice and the rule of law. While both men and women said they experience harassment, including bullying, women said they also experience sexual harassment.

‘I was treated differently because I was a woman,’ one of the respondents wrote. ‘From little things like having to fetch the male partners their coffee and lunch, to huge issues like much younger men without qualifications being hired and given all of my work.’

About 50 per cent of female respondents and 30 per cent of male respondents said they had experienced either bullying or intimidation. The data shows that women in Africa were most affected, also by discrimination based on ethnicity.

Of the female respondents, 67 per cent said they experienced discrimination based on their gender, as opposed to 10 per cent of men. Sexual harassment and discrimination due to family responsibilities were also significantly higher with women. ‘Generally, law firms remain a boys’ club, even those with many women working there, which tends to reflect the fact they were established by men in more “traditional times”,’ says Ellis.

Women lawyers responded to the survey saying they felt colleagues looked ‘down on my gender’ and that people in the firm ‘like to swear and throw personal comments at you that are unrelated to the work you do’.

‘Law firms are like many other businesses,’ says Hanim Hamzah, Regional Managing Partner with ZICO Law Network in Singapore. ‘Good law firm leaders ensure that accountability in addition to empathy is important. Good law firm leaders see harassment and discrimination as crimes and ensure systematic policies are in place to combat this crime.’

Virginia Briggs, partner and Infrastructure Construction & Property Leader with MinterEllison in Sydney, says her firm employs various policies to create a safe workplace. ‘The critical underpinnings include firm-wide mandatory [Equal Employment Opportunity], Anti-Discrimination and [Workplace Health and Safety] training; clear and well understood policies and practices and a demonstrably supportive and open environment where all members of the firm feel safe to speak up,’ says Briggs. ‘The legal profession would be extremely naïve to think that sexual harassment is something that is not an issue – our profession employs significant numbers of women and there are inherent power dynamics at play.’

Flexibility

Despite the introduction of flexible working arrangements, the LPRU report shows that women – and, to a lesser extent, men – are still leaving firms because they struggle to strike a good work-life balance. Both women and men are afraid that asking for flexible working arrangements might damage their career prospects. Women also said that they often do not feel supported by clients, colleagues and management.

Asked what would have changed their decision to leave the law firm, one of the respondents answered: ‘If my workplace would have allowed me reasonable and flexible working hours to have enabled me to attend to my responsibilities as a nursing mother, without bullying or harassment from some seniors. My complaints that I needed more time for the proper raising of my children fell on deaf ears. Instead, more workload was given me for unbilled, unrewarded working hours. My three-year-old son was no longer acknowledging me.’

The findings of the survey show that ‘for every type of flexible working, men were more likely than women to have their request approved’. Patricia Menéndez-Cambó, Vice-Chair of the IBA Women Lawyers’ Interest Group and Vice- Chair of Greenberg Traurig, has found the same. ‘If a man wants flexibility because of lifestyle choices, he is more likely to be viewed in a favourable manner, while, historically, women have been subjected to the stigma of being put on the mommy track,’ she says. ‘Education and training about unconscious bias could help change these patterns. Acknowledgement of a bias is the first step toward change, because it can lead to increased effectiveness and implementation of equitable policies,’ says Menéndez-Cambó.

When Funke Abimbola, General Counsel and Head of Financial Compliance with Roche Products, and a champion for diversity in the legal profession, returned to her firm after having her son, she was disappointed by the lack of support she received. ‘I returned from maternity leave quite naïvely, not really thinking about what kind of challenges that could possibly pose. I was really disappointed by the lack of preparation the firm had done for me returning. There was little sense of supporting a woman returning. In the end, I left the firm for a regional practice to try to find a way of working that would actually work for my home life. And that was still working full-time,’ she says.

Rosemary Martin, award-winning General Counsel with Vodafone, left her law firm after having children. She thinks firms could do more to enable women to make it into the senior management of a firm after having children. ‘The time when most women are on the path to partnership, is exactly the time when they might be thinking about starting their own family. I think there is a big issue around enabling women to work in a way that allows them to manage both the practicalities and the mental headspace issues of having young children and a fulfilling career,’ she says.

‘I came back from maternity leave when I was working in a law firm and I agreed to go into the knowledge management and legal support side of the firm. I then realised that was probably a very bad mistake, because it meant that I was side-lined. That was frustrating, because I felt that I was still the same intelligent contributor that I had been before, but I was now in what was then viewed as an inferior capacity; I got side-lined. In the end, I left the firm. I went in-house and initially worked four days a week and I felt valued for what I contributed to the job,’ Martin says.

The pressure of billable hours

Demanding billable hour requirements puts extreme pressure on commercial lawyers regardless of gender – for full-time or part-time arrangements – and should be included in a thorough review of the structure of law firms if they are serious about identifying inbuilt discriminatory barriers. Young lawyers, particularly millennials, are pushing for changes to this requirement.

A new generation of lawyers is advocating for flexible working arrangements and the development of technological tools make them more feasible, but unconscious bias continues to prevent progress, says Menéndez Cambo. ‘While millennials embrace the technology that makes a new style of working possible, implicit biases often stand in the way,’ she says.

In order to retain women in law firms and help them to advance within a firm, Liat Keisary, a partner at Barnea & Co in Tel Aviv, says that rethinking the billable hours structure might be necessary. ‘While I would argue the right solution for each woman is very individual, I do feel rethinking billable hours and equal parental benefits could have a general positive effect. For instance, judging billable hours on an annual basis, versus a monthly basis, would help disprove notions that women put in less work because of pregnancy and child-rearing. Giving men the ability to leave work early to pick up children would also help generate a more equal playing field. Creating more options to work from home is another step firms could take to retain more women,’ says Keisary.

Abimbola says that flexible working arrangements often don’t work out the way they should. ‘Presenteeism is rife and you have to be seen to be in the office. There is a stigma attached to working remotely because you are not visible. You have the pressure of recording time and your billable hours target. One of my previous firms wanted us to bill five times our salary in billable hours. That kind of pattern is just not conducive to anyone who has any kind of life outside work and it affects women disproportionally because we tend to get the carer responsibilities,’ she says.

While technology might be a solution to ‘visibility’ in the workplace, it also is at risk of eroding ‘the separation between work and personal life,’ Ellis and Buckett point out in the report. Abe Schear, a partner with Arnall Golden Gregory, thinks firms will adapt to finding ways to retain talent, including women. ‘Most law firms will learn to adapt in order to retain the intellectual capital they have and the investment they made in their attorneys. There will in the future be more opportunities for people to work different kinds of hours, in or out of the office, to participate to different degrees in different parts of the firm. Technology has made being in or out of the office much more equal,’ says Schear.

The business case for diversity

The report shows that, while mentorship is important, the value of sponsorship for the advancement of women in commercial law firms is essential. ‘The process for initially joining a law firm is reasonably transparent and, once you’re in, mentorship helps you navigate a firm and the profession. Sponsorship, however, is even more important to career progression in a firm. Unfortunately, the sponsorship process is less formal and more opaque. Senior lawyers often identify with younger lawyers if they recognise themselves in them and that usually means senior male partners relating to younger men, and sponsoring them instead of young women,’ says Ellis.

Martin, who says she benefited greatly from the sponsorship of a director during her first in-house job, agrees. ‘I think sponsorship is really valuable,’ she says. ‘Women looking to work their way through organisations can benefit from someone who is actively championing them. I am wary of [initiatives that make it appear as though the firm is] helping women, but do not actually help them to progress. I think sometimes mentorship can fall into that category’.

After having worked in various law firms for 12 years and nearly six years of practising in-house, Abimbola sees clear systemic challenges in the legal profession. To ease pressure on law firms, managing client expectations is crucial, she says. ‘I have never had any of my panel law firms working through the night, doing insane hours. When I worked in private practice in central London, partners did not manage client expectations all that well. In fact, they almost used this as a competitive edge, to show how quickly we could get the work done,’ Abimbola says.

As a client, she requires diversity in the law firms she works with, and so do others. ‘A lot of clients are insisting on diversity as a core part of the tender process for law firms,’ she says. Equal opportunities for women to progress in law firms is not just a moral obligation, but there is a compelling business case as well, says Alexander Schwarz, Co-Managing Partner with Gleiss Lutz. ‘It is not only about better teams or a question or fairness, there is also an economic argument. We cannot go on like this. We are losing so many women on their way into partnership or counsel. This is a pity. We need to be better in keeping women with us,’ he says.

Menéndez-Cambó says that the business case regarding the benefits of diversity has been effective in encouraging employers to achieve diversity goals. However, she emphasises that just implementing policies is not enough. ‘Measuring the effects of these policies to see if they are actually impacting diversity numbers is essential,’ she says.

In its final recommendations, Women in Commercial Legal Practice calls on law firm management to take ownership of diversity policies and ensure that practices are subject to review.

‘The IBA’s LPRU encourages law firm management – that is, senior partners in positions of authority – to conduct thorough reviews of the structure of their law firms, taking into consideration the law firm culture, business practices (including billable hours), job allocation, pay scales and professional ideology. Such an approach is critical to identifying the structural barriers that impede the progress of women (and others),’ the report states.

Peter Bartlett, partner with MinterEllison, says that gender diversity should be recognised as a strategic issue that should be ‘core to the leadership team’s agenda’. ‘This means that, like any other strategic challenge or opportunity, male and female leaders must work together to deliver the outcomes sought. It is also vitally important that every partner recognises the role they play in ensuring that all our talented people, female and male, have the opportunity to achieve their potential in an inclusive and supportive firm environment,’ says Bartlett.

Some way to go

While women have come a long way, there is still much to do for gender diversity, says Martin. ‘I’ve been practising law since the 1980s. I first became interested in diversity and gender balance in the legal market when I was working in the City of London and I was endlessly going to meetings just with white men. This seemed a bit curious, having come out of a university where there were men and women of apparently equal intellect, so I couldn’t quite work out what was happening. It definitely got better over the years but there is still a way to go.’

And it doesn’t end with gender diversity. ‘We need to recognise that gender diversity is just the start – and while there is still work to do on that front, we are also now working on improving cultural diversity and other areas of diversity. This approach is critical to ensure that our firm really attracts and retains the strongest group of contributors to our firm and our clients’ future success,’ says Briggs.

Yola Verbruggen was formerly the IBA’s Senior Reporter. She can be contacted at yverbruggen@gmail.com