Women in the profession — time has passed, what has changed
William M. Everett, QC
Time can give us a clear and sometimes dramatic perspective on how far we have come. In 1908 the Law Society Secretary, Oscar Bass, penned these words to a colleague from Ontario: "I beg to say that the fair sex
have not yet threatened to invade the legal profession in British Columbia. The Benchers not yet having had to consider the application of a modern Blackstone in petticoats to enter the profession, it is difficult to say what their feelings would be or what decision they would reach ."
I suspect it was not a great surprise to Mr. Bass when, just a few years later, the Benchers of the day decided they had no power "to admit ladies to the practice of law." Despite firm resistance from the established order, Mabel Penery French broke new ground, pushing government to pass An Act to remove the Disability of Women so far as relates to the Study and Practice of Law and becoming the first woman to be called to the BC bar on April 1, 1912.
There have been many firsts for women lawyers in the 90 years that followed. A cause for celebration, but also reflection. The transitions have not been easy and there is undoubtedly some way to go.
It is now over a decade since the Law Society released two major studies on gender issues in the legal profession and justice system - one in 1991 by the Women in the Legal Profession Subcommittee, chaired by Kate Young, and the other in 1992 by the Gender Bias Committee, chaired by Ted Hughes, QC.
Those studies were the first to document the status of women lawyers in BC - describing in some detail the difficulties that many have faced in accommodating both the practice of law and family responsibilities, and the discrimination and sexual harassment encountered by others.
To their credit, the Benchers of the early 1990s confronted many of the issues head-on, determined to show leadership by encouraging more equitable conditions for women in practice, including career breaks for family responsibilities, and by tackling discrimination. These were the key initiatives:
- a Professional Conduct Handbook rule that discrimination, including sex discrimination and sexual harassment, is professional misconduct, adopted in 1992;
- a non-practising membership category with a lower fee, beginning in 1994;
- a 50% reduction in liability insurance for members in part-time practice, beginning in 1993;
- active encouragement of women lawyers to stand for election as Benchers;
- reimbursement of reasonable child-care expenses incurred by Benchers and lawyers while on unpaid Law Society business;
- encouragement of law firms to adopt workplace policies on maternity and parental leave, alternative work arrangements, gender-neutral language, employment equity and workplace harassment;
- retaining an independent Discrimination Ombudsperson (now Equity Ombudsperson) to mediate allegations of discrimination in law firms, with the agreement of all parties.
The years have passed. The question remains: How much has changed for women lawyers?
Today's statistics offer a few encouraging facts about women lawyers in BC. Women are entering the profession in higher numbers than ever before. Looking back to the 15-year period between 1974 through 1988, men made up 73% of all newly called lawyers in BC, and women just 27%. More balanced law school enrolments have since made a difference. Over the last 15 years (1989 through 2003), women made up 45% of all newly called lawyers and men 55%.
Perhaps the best news is that the attrition rate for women, at least in the early years of practice, has dropped. The Women in the Legal Profession study found that the yearly average attrition rate for lawyers called during the 15-year period between 1974 and 1989 was 23% for women, compared to 13% for men. Looking back on the past 15 years, the attrition rate for women has dropped to 16% and for men risen just slightly to 14%. The overall average attrition rate was around 15% during both periods. And there has been some cumulative effect. At the time the Women in the Legal Profession study was released in 1991, just one in five lawyers was a woman. Today, that number is close to one in three.
While economic factors and the migration of lawyers from province to province can affect growth in the profession, one of the reasons for lower attrition rates among women is likely non-practising membership. This category of Law Society membership was introduced in 1994, and was intended to accommodate career breaks by women lawyers who needed to attend to family responsibilities.
There are still proportionally fewer women in practice than men. Of women lawyers called in the past 15 years, 78% are practising members and 22% non-practising. Among men called during the same period, 87% are practising members and 13% are non-practising. Across the entire profession, almost 80% of women are now practising members and 20% non-practising; whereas 88% of men are practising members and 12% are non-practising. To focus more precisely on private practice, 67% of women lawyers in BC are in private practice, compared to 82% of men.
More details are needed to complete the picture, to tell the full story. Are women staying in the profession longer across all years of call, or not? Are they taking up non-practising membership to facilitate career breaks and then integrating back into practice? Or are they remaining non-practising members for longer periods? If so, why? We need to know if women are now finding their career opportunities and experiences more equitable, and to see if balance between work and family commitments is possible in our profession. Are women lawyers where they want to be in their careers, or are they settling for less?
When asked why they were leaving the profession more than a decade ago, women cited some reasons that were different from those of men - child care commitments being a prime example. Yet men and women also shared concerns about the general lack of flexibility in the practice of law, so some issues of dissatisfaction may affect both men and women.
The Women in the Legal Profession Subcommittee recommended that the Benchers re-examine the status of women by the year 2000, so a second look is well past due. This task falls to our Equity and Diversity Committee, chaired by Victoria Bencher Anne Wallace, QC and to the Women in the Legal Profession Working Group, chaired by Vancouver Bencher Margaret Ostrowski, QC.
I pause here to note that Ms. Ostrowski has already taken the initiative of organizing an annual lunch-time panel of senior women lawyers on campus at UBC and UVic to share with law students their experiences and the lessons they have learned in practice. The latest panel took place in mid-March at UBC, drawing 75 students, including men. It was an opportunity for experienced women lawyers to encourage women who are aspiring to become lawyers - and to emphasize the importance of both women and men finding balance between work and life, without necessarily accepting the conventional career advice of the day. There is clearly a need for this type of mentorship, and I understand the panel ran out of time well before the students ran out of questions.
I expect the Working Group will gather the latest research from across Canada - including a recent study on gender issues out of the Law Society of Alberta - and will consider what research is needed in BC. Among the possibilities now being canvassed is a voluntary exit survey that would allow all BC lawyers, both women and men, to say why they are withdrawing from practice and to flag any systemic issues that the Law Society needs to consider.
Taking the pulse of the profession, through surveys, research and discussions, is important. It keeps the Law Society in touch with lawyers and their concerns. The results of that research can also help lawyers better understand the pressure points in their own firms, hopefully to avoid losing some of their brightest talent whom they have spent time recruiting and training. The latest issue of the CBA National magazine flagged a high attrition rate among associates generally in Canada, and pointed to the cost of losing associates just as they become valuable to the firm.
There is always a business cost, as well as a social cost, to losing good lawyers at the wrong time and for the wrong reasons. On the issues facing women lawyers in particular, I am pleased that our Equity and Diversity Committee and the Women in the Legal Profession Working Group will begin a fresh assessment of where we stand today - to see what has worked and what has not and what changes are still needed to bring women to a position of equality in the profession.