The Answer Is Blowin’ In The Wind

The Complete Lawyer
Volume 2, Number 5
October 2006

With women constituting half of all law school graduates, firms know that they have to be able to recruit them. So why have law firms been so slow to make real changes in the policies and practices that block the success of women’s initiatives? 

“Yes, and how many times can a man turn his head pretending he just doesn’t see? The answer my friend is blowin’ in the wind, The answer is blowin’ in the wind.”
                   – Bob Dylan 

When I began coaching women lawyers in 1998, Presumed Equal: What America’s Top Women Lawyers Really Think About Their Firms, was among my primary reference tools.

A client considering an offer from one of the firms surveyed could read the first-hand observations of women working there regarding issues like gender discrimination, work-life balance and opportunities for advancement. In spite of its sampling and other methodological problems, the book was at least a beginning. After reading relevant sections, a woman attorney had a starting point for questions she wanted to ask women currently working at a prospective firm.

In The New Millennium, Law Firms Want To Appear To Women Lawyers To Be A Great Place To Work

The book went out of print not long after its publication date and every attorney to whom I recommended, or even mentioned it, had never heard of it. So, it has been interesting to observe the attention focused on the publication of the 2006 edition.

A number of firms with poor ratings called to inquire about my consulting services. One thing that has changed in the new millennium is the desire on the part of law firms to appear to women lawyers to be a great place to work. Those firms with high ratings immediately added the information to their websites and marketing materials. With women constituting half of all law school graduates, firms know that they have to be able to recruit them.

But the real issue is the extent to which opportunities for women to succeed in their legal careers have changed significantly since the 1998 edition of Presumed Equal was published. Certainly most firms now have some kind of flex-time policy. Some have affinity groups and women-focused committees with titles like women’s initiative, women at [name of firm], women’s leadership initiative, etc. Having presented to or consulted with many of them, the difference between website marketing and reality makes the Grand Canyon look like a hairline fracture.

There Is Typically A Profound Absence Of Understanding As To What Is Necessary To Produce Real Change

Each of these efforts is backed by earnest and committed supporters. But poorly, or unfunded efforts, reveal the extent of management commitment. Some firms do have commitment from the top. Unfortunately, all too often management’s allegiance to the issues is motivated more by concerns about keeping up with whatever the competition is doing than a heartfelt desire to create a genuinely diverse and welcoming workplace. And even in those cases where the executive committee genuinely wishes to produce change, there is typically a profound absence of understanding as to what is necessary to produce real change. The response to the explanation of the requirements for meaningful change is most often a negative reaction to the financial costs or fear of backlash from powerful rainmakers.

My optimistic side reminds me that resistance to change is normal and that lawyers, typically loathe to change, resist it even more. This hopeful voice says that there is value in consulting with firms that span the spectrum of genuine interest in improving the situation for women. In those where the initiative is unsupported from above, there is the potential to empower women at the grass-roots level. Motivations to keep up with the competition may offer a foot in the door and create opportunities for demonstrating the value to the firm of genuine and effective efforts to advance its women lawyers. Those firms with a sincere desire to change can begin with small initiatives that create broader buy-in and only require financial commitment in installments.

“They Ask Me, ‘How Many Do We Really Have To Have?’” Lamented A Senior Woman In-House Attorney

In order to maintain my optimism, I remind myself of the predictions made by Diane Yu, past Chair of the ABA’s Commission on Women in the Profession, that 2010 would be the year of the “perfect storm.” At that point, said Yu, 40% of U.S. lawyers will be women and clients seeking diverse representation from outside counsel will drive needed change.

But the picture doesn’t always look this rosy. At a recent National Association of Women Lawyers’ event, Deborah Epstein Henry, President of Flex-Time Lawyers and co-sponsor, with Working Mother magazine of The Best Law Firms for Women initiative, interviewed Tim O’Brien, author of a New York Times article entitled, “Why So Few Women Reach the Top of Big Law Firms.” A significant number of women in the audience told O’Brien that clients like Sarah Lee, Wal-Mart and Shell Oil are driving widespread change at firms.

Oh, would that it were so. O’Brien questioned how real these changes are. Wal-Mart’s firing of one firm is typically touted as the evidence. And it is the case that there are more women and attorneys of color listed as relationship partners on matters with such clients. But in my conversations with in-house attorneys at these and similar corporations, I hear a lot of concern about the failure of firms to “get it.” “They ask me, ‘how many do we really have to have?’” lamented a senior woman in-house attorney.

Law Firms Promote Women When Their Corporate Clients Have Women In Three Key Leadership Positions: GC, CEO And Board Director

Similarly, senior partners at a number of large firms have confided that they’ve lost no business from these companies. Others say that when it comes to “bet the company” cases, no in-house lawyer will risk their career to promote diversity in their outside counsel.

The one research study addressing this issue, published in The American Sociological Review, found that law firms promote women when their corporate clients have women in three key leadership positions: GC, CEO and board director.

A firm with few clients is even more influenced by senior in-house women. In 2005, the percentage of women GCs in Fortune 500 companies was 15 percent. According to Catalyst, only eight companies in the Fortune 500 were led by a woman CEO in 2005. That’s not a lot of leverage.

A recent survey by the National Association of Women Lawyers found the percentage of women equity partners in 103 of the 200 largest law firms to be 16 percent, an increase of only three percent since 1995. Previous surveys had indicated that the percentage was somewhat higher, but that was due to the fact that firms do not distinguish equity from non-equity partners when reporting numbers for a national audience.

Lack Of Change Cannot Be Due To Insufficient Information

I can’t imagine anyone in the profession who by now has not heard the business case for diversity or for flexible schedules. The obstacles to the advancement of women—lack of mentors, exclusion from informal networks, lack of access to developmentally important work assignments, and unexamined bias—have been publicized by multiple authors and publications. Inadequate change cannot be due to insufficient information.

Similarly, both management and psychological research consistently show that employee engagement is increased by:

• Self-determination
• Choice in how work is done
• Flexibility
• A sense of safety about voicing one’s concerns
• Perceptions of managerial trustworthiness
• Having a supportive and caring supervisor
• Meaningful and supportive connections with colleagues
• Frequent and constructive feedback
• Personalized recognition of contributions
• The opportunity to do meaningful work and to use one’s strengths
• Furthermore, engagement fosters creativity, client satisfaction, decreased attrition, greater productivity and profitability.

Many Law Firm Managers Insist That Law Firms Are Different From Other Businesses. This Is Not True

Many law firm managers insist that law firms are different from other businesses so that these findings do not apply to them. But consultants who have worked with businesses other than law firms know this is not true.

When I consider how often those of us trying to create greater opportunities for the retention and advancement of women lawyers have repeated ourselves in reminding decision-makers of these facts, it’s sometimes hard to maintain my optimism.

But then the consultant in me reminds me that change doesn’t occur until it becomes the decision-maker’s agenda.

It’s like the joke about psychologists: How many psychologists does it take to change a light bulb? Only one, but the light bulb has to want to change.

Those of us trying to change the way law firms function must remind ourselves that managers need self-determination as much as the women (and men) who work for them do.

Perhaps if all of us in the change business back up to telling less and asking and showing more the answers will stop blowing in the wind.

How, exactly, can we do this? I’ll save that for the next issue of TCL.