December 1999

Diversity in the Practice of Law

This article is the fourth in a series presented by a subcommittee of the WSBA Long-Range Strategic Planning Committee. The other articles were printed in the November issue of Bar News.

By the year 2010, women and minorities will comprise approximately 50 percent of this country's attorneys.[1] Although the Washington State Bar Association has a Committee for Diversity, a stronger, more direct commitment to recognizing and achieving broad-based diversity within and by the legal profession is needed. Such diversity would include, inter alia, diversity in gender, race, religion, sexual preference, physical abilities, age, socio-economic background and environment.

The balance of this report cites the work of the American Bar Association (ABA) and the King County Bar Association (KCBA) on this topic, as well as current statistics and future trends.[2]  It is suggested that steps taken by the ABA and/or suggested by the KCBA be replicated by the WSBA, to demonstrate the Bar's strong commitment to providing a positive environment for cultivating diversity, and to encourage employers and the courts to open their doors to those professionals.

Demographics[3]

Today, women comprise 26 percent of the profession and 46 percent of law students.[4]  The profession is trending toward better representation of women, but there is a long way to go. For example:

• Between 1971 and 1991 the number of men in the profession doubled, and the number of women increased 16-fold.

• Seventy (70) percent of women attorneys are employed in private practice, compared to 74 percent of male attorneys.

• Women partners are underrepresented by a factor of two (i.e., between 11-14 percent in 1995, up from 10 percent in 1991 and three percent in 1980); however, the larger the firm, the more likely it is that a woman will make partner (over 95 percent of firms with more than 50 attorneys had at least one woman partner, while less than 20 percent of small firms had a woman partner).[5]

• In private practice, 48 percent of female and 44 percent of male lawyers are solo practitioners.

• Women are remaining associates longer than their male counterparts,[6] and are more likely to be offered or employed in "non-equity" positions; they are seriously under-represented among law firm partners of all ages, and over-represented by a factor of two among older associates.

• Sixty-one (61) percent of U.S. law firms are all male; only one percent are all female.

• Of those firms that employ associates, 44 percent employ only men.

• Earnings comparisons document continuing gender disparity; newer female associates earn, on average, nine percent less than their male counterparts.

• Women in the judiciary have made great strides, but still lag in numerical parity in almost every court (at 22 percent, the U.S. Supreme Court is the closest federal court to achieving parity).

• Government remains the traditional bastion of woman attorneys, but the ratio of women attaining highest positions is not proportionate to their presence.

• Women are poorly represented in law school faculties; only eight percent are deans and 17 percent are law professors, and they disproportionately hold more non-tenured positions.

• Although women make up 26 percent of the legal community, they hold only 19 percent of private industry (in-house) positions.[7] 

Although significant gains have been achieved, women are still foreclosed from parity in the legal workplace. Critical issues include:

• pay equity;

• equal partnership and promotion opportunities (including gender parity in the time required for partnership or promotion);

• equal access to judicial positions, political appointments, professional-association positions and management;

• the need to eliminate professional penalties systemically imposed on women (and some men) who are currently required to compromise their careers for family — a systemic glass ceiling.8 This is compounded by the increased competition for positions, which may lead to choosing the more flexible single male attorney to his female counterpart, or pressuring women out of more competitive markets;

• sexual discrimination and sexual harassment in the workplace and the courts;

• domestic violence; and

• outreach to women who have left the profession or are on leave.

Trends and Issues Affecting Minorities in the Profession

Demographics [9]

Overall, minorities represent 7.5 percent of the profession (as of 1990), and 20 percent of law students (as of 1996). The racial integration of the profession has been slow, and there are "miles to go." For example:

• In 1990, minorities comprised 25 percent of the U.S. population, but only 7.5 percent of the legal profession.

• Although minorities make up 10 percent of the associates in large law firms nationwide, they make up less than three percent of all partners.

• Minority partners are more likely than their white counterparts to be non-equity or salaried partners.

• Minority representation among partners in law firms is increasing at a rate of only .02 percent annually.

• The distribution of minority attorneys remains heavily skewed toward government and public-interest jobs (only 42.1 percent of African-American attorneys enter private practice following graduation, compared to 57.3 percent of white attorneys).

Despite gains in law-student and entry-level representation, racial integration of the profession faces a number of challenges, including:

• bar passage rates that remain lower for minority graduates than their white counterparts;

• anti-affirmative-action policies, such as I-200, that pose a tremendous threat to minority entry and advancement within the profession (minority representation among law students has dropped for the first time in 10 years, markedly in California and Texas, after adoption of such policies);

• law firm attrition, especially for minority women (minority women are significantly outnumbered by minority men in most upper-level jobs and report that they are "ghettoized" in certain practice areas and treated as if they are incompetent by their employers);

• minority attorneys' lack of access to clients, which is the primary obstacle to their advancement;

• under-representation of minorities in all sectors of the legal profession; and

• methods of judicial selection that have a profound effect on the percentage of minorities who achieve judicial office (minorities are more likely to enter the bench through appointment methods such as merit selection than through election).

Trends and Issues Affecting Lesbians and Gays in the Legal Profession

A task force of the King County Bar Association (KCBA) worked from 1993 through 1995 compiling information on lesbians and gays in the legal community, offering recommendations for reducing bias, and forming a standing committee to implement those recommendations. Since information on lesbians and gays throughout the WSBA membership is not available, this portion of the report summarizes the information contained in the KCBA's 1995 report: In Pursuit of Equality, The Final Report of the KCBA Task Force on Lesbian and Gay Issues in the Legal Profession (KCBA Report).[10]

Accurate information on the demographics of lesbians and gays in the legal profession is more difficult to obtain than information on women or racial minorities. The KCBA surveyed its members and employers, and learned that "employers, especially private law firms, are not very hospitable to lesbian and gay attorneys."[11] Indeed, the KCBA Report identified situations in which bias arose during hiring, case assignments, professional development, compensation, promotion and termination. Accordingly, it is not surprising that the actual number of lesbian and gay WSBA members is not known. The KCBA's Task Force pointed to reports which place the number of lesbians and gays in our general population at anywhere from six to 20 percent. The Task Force noted, however, that it is possible the ratio of lesbians and gays is lower than the general population, because "barriers to full participation either deter people from entering the legal profession or, once in, cause them to leave."[12] In fact, the majority of the firms surveyed by the KCBA's Task Force said they did not have any attorneys or staff working for them who were openly gay or lesbian.[13]

• Bias in employment: The KCBA's Task Force identified bias throughout the entire spectrum of legal employment: "censoring" résumés by law students (to delete experiences which could reveal sexual orientation); blatant bias in the recruiting process (e.g., canceling interviews after the candidate revealed his sexual orientation); lack of articulated and/or enforced employment policies prohibiting discrimination based upon sexual orientation; discrimination in pay and benefits (including a disproportionate number of gay and lesbian attorneys working in legal jobs that pay less, such as government, public interest, nonprofit, small and solo firms); significant barriers to professional success (e.g., bias in work assignments, client-development opportunities, performance evaluations, discipline and advancement); social affairs (firms excluding homosexual partners from participating in activities); educational programs (putting the burden on gay and lesbian attorneys to educate their entire firm); and, ultimately, the creation of the Lavender Ghetto (i.e., finding a safe, tolerant work environment which might not offer the same economic and professional opportunities).[14]

• Bias in the courts: The KCBA's Task Force observed pervasive discrimination against lesbians and gays in the courts, with the most significant impact upon litigants "who do not think 'Equal Justice Under the Law' is being applied to them."[15] The Task Force catalog of discrimination included: efforts to introduce evidence of sexual orientation in court (although rarely relevant to the proceeding at hand), judges singling out gay or lesbian defendants for embarrassment in crowded courtrooms, and harassment by opposing counsel directed at an attorney's sexual orientation.[16]

The ABA's Approach

In 1989, the ABA adopted Goal IX, which states: "To promote full and equal participation in the profession by women and minorities."

In the ten years since adopting Goal IX, the ABA has formed two separate commissions, one for women and another for minorities. A subsection of the Women's Commission studies the special needs and concerns of minority women.

The Commission's objectives are to:

• develop programs, policies and publications to advance and assist women and minority attorneys;

• educate the profession about issues affecting women and minority attorneys;

• educate the profession on work/family issues that affect all attorneys.

The Commission's work includes:

• annual reports which track and analyze minority and women attorneys' participation within the ABA;

• statistical reports tracking minority and women attorneys in the profession, generally;

• reports and programs focusing on mentoring, part-time work, parental leave, case assignments, and balancing work and family;

• encouraging and facilitating law schools to develop minority and gender-friendly environments which include the changing demographics of their students, professors and deans;

• meeting with managing partners and private employers to encourage the use of progressive work policies and to promote trend-setting in legal and business communities; and

• outreach to women and minority attorneys to identify their most pressing issues.

The new ABA President, William Paul, has made diversity the cornerstone of his tenure. He started the new bar year by committing $50,000 for a diversity scholarship, which his firm quickly matched, and which ABA members throughout the association are increasing daily. Mr. Paul has scheduled meetings with bar associations across the country to promote and encourage diversity; he met with the WSBA in September 1999.

The KCBA's Blueprint Recommendations for Eliminating Bias Based upon Sexual Orientation [17]

By disseminating, promoting and supporting the KCBA Task Force's recommendations for eliminating bias, the WSBA will enhance its own diversity and become more supportive of its members' needs. Listed below is a summary of the KCBA Task Force recommendations:

• Make a firm commitment to equality and diversity.

• Implement anti-discrimination and anti-harassment polices that include sexual orientation.

• Publicize and promote these policies.

• Provide equal benefits, including insurance, leave, parental, relocation and other benefits.

• Treat AIDS and HIV status like any other medical condition or disability under the firm's policies.

• Reach out to lesbian and gay law-student organizations. Invite interested students to apply, provide applicants with the names of lesbian or gay employees, list lesbian and gay pro bono and community activities, and train interviewers to be sensitive about issues concerning gay and lesbian applicants.

• Using professional trainers, educate and sensitize the workplace without glossing over sexual orientation issues; educate new attorneys about firm policies; and discuss legal developments affecting gays and lesbians.

• Implement a professional-development program inclusive to gays and lesbians, such as including gays and lesbians as mentors on hiring committees, eliminating bias in the evaluation process, creating a grievance mechanism, and paying attorneys' dues to participate in lesbian and gay organizations and pro bono activities.

• Integrate gays and lesbians into the firm's social environment by taking steps to make gay men and lesbians comfortable bringing their partners to social functions, using the word "guest or partner" instead of "spouse" on invitations, including partners in company rosters which traditionally include spouses, including news and items of interest to gay and lesbian employees in internal publications, and supporting the creation of networks and other opportunities for gay and lesbian employees to discuss common professional concerns.

• Exercise patience and persistence in taking whatever additional steps are necessary to eliminate bias and discrimination in the workplace.

• Expand law school curriculum to include laws and legal issues affecting gays and lesbians; include lesbian and gay issues in seminars.

• Appoint openly gay or lesbian faculty members.

• Establish a lawyer-student network for gays and lesbians.

• Adhere to nondiscriminatory recruiting standards, and ask employers to provide information about their anti-discrimination policies and demographics.

Recommendations for the Courts

• Stay involved in the process.

• Include sexual orientation bias in the court's internal committees.

• Strengthen the RPCs and the Code of Judicial Conduct.

• Gather information about bias.

• Appoint an ombudsperson or create an Office of Fairness in the Courts.

• Pitch in.

• Speak up and stand up against homophobia.

NOTES

1 May 20, 1999 speech to ABA by Karen Mathis, Chair of the ABA Commission on Women in the Profession (ABA Speech).

2 Unfortunately, more than 39 percent of WSBA members fail to answer voluntary, confidential survey requests concerning diversity included in annual renewal forms. Accordingly, it has not been possible to obtain an accurate breakdown of the diversity in Washington's legal population, and the authors of this report were required to rely upon and extrapolate from the information provided by the ABA and the KCBA. It is strongly suggested that the WSBA perform a confidential, stand-alone census of its membership to ascertain its actual diversity (i.e., a survey not included in the WSBA annual renewal material and administered by a third party).

3 Women in the Law, A Look at the Numbers, ABA Commission on Women in the Professions (December 1995).

4 An incredible increase between WWII and 1969; the number of women law students ranged from three to five percent.

5 In 1991, 39 percent of firms hired female attorneys, but only 26 percent of firms had female partners.

6 A 1995 study of NY firms noted that 17 percent of males made partner "on track" while only five percent of women did; and this is down from the last decade, when the percentages were 21 percent and 15 percent, respectively.

7 A 1992 survey of corporate law departments reported that 14 percent of management and 89 percent of staff attorney positions were held by women. A 1994 study reflected pay disparity; male management attorneys earned, on average, eight percent more, and male staff attorneys earned, on average, 15 percent more than female attorneys.

8 Harrington, Mona, Is Time Out for Family Unprofessional? ATLA Trial Magazine (February 1997).

9 Miles to Go: Progress of Minorities in the Legal Profession, ABA Commission on Opportunities for Minorities in the Professions (1998).

10 It is strongly suggested that the reader obtain a copy of this report and review its recommendations and the complete Task Force work and appendix. These can be obtained from the KCBA by calling 206-340-2574.

11 KCBA Report at 1.

12 KCBA Report at 14.

13 KCBA Report at 16.

14 KCBA Report at 15-32.

15 KCBA Report at 33.

16 KCBA Report at 33-40.

17 KCBA Report at 40-57 includes a detailed list of recommendations for eliminating bias; this report simply summarizes the headings from that work.

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