A perspective on the role of women in law today
Anna K. Fung, QC
I would like to devote my final column as President to all female legal practitioners. I preface my remarks by noting that the views that I express here are not those of the Law Society, but my own. The views I express are influenced by my perspective as a Chinese Canadian and by my experiences practising law in large downtown law firms and large Vancouver companies — organizations that are predominantly male and predominantly white. My insights will not strike you as particularly profound or earth-shattering, but I hope they will give you some food for thought and a basis for reflecting on how you might wish to approach the practice of law from now on.
First of all, we should remember just how far women have come in the practice of law. Less than a century ago in 1908, the Secretary of the Law Society of British Columbia, Oscar Bass, wrote to an Ontario colleague in these terms:
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.
What has changed since? A lot in some ways and not so much in others.
Today, female students make up more than 50 per cent of Canadian law schools. Every year, more and more women take home gold medals. Women manage to get hired by law firms just as much as men do. Yet, there appears to be a much higher attrition rate for women leaving law than there is for men. Female lawyers in general still earn less money than their male counterparts, and they are less likely to be in positions of power and influence compared to their male peers. Why is that, and why should we care?
There is a lot of speculation as to why women are leaving law. One is that women leave the practice of law because they want to have children. Some women have told me that they did not feel that they could continue in private practice after having children because of the lack of support from the partners in their law firm for the decrease in billable hours that is associated with maternity leave and the demands of juggling a family with their law practice.
The private practice of law today is becoming more and more of a business rather than a profession. Law firms earn a profit by urging lawyers to maximize the number of hours they bill, which essentially makes lawyers slaves to the billable hour. To expect a firm to put the demands of family obligations above the earning of profit may be unrealistic and amount to asking for the impossible.
The challenges that the billable hour system presents to maintaining work-life balance do not apply solely to women. In my experience, law firms are just as brutal on men whose billings don’t meet the established billing targets as they are on women who don’t meet targets for “family” reasons. In short, most law firms today, given the high salaries that lawyers command, will not tolerate underperforming associates, even underperforming partners, regardless of the reasons for that underperformance.
You may argue that not billing 2,000 hours a year because you want to spend time with your children is not underperformance. However, from an economic perspective, an hour not billed is an hour that the other lawyers in the firm have to subsidize. That is the brutal truth. The more enlightened lawyers recognize that that type of “subsidy” is worthwhile for societal reasons and are prepared to accept that as the price they must pay to keep women and men in the practice of law. But the less enlightened lawyers say no accommodation at all should be made for those who choose to spend less time at work for “personal” reasons.
The reality is that, in most law firms, lawyers take lengthy parental leave at peril to their standing in the firm, career advancement prospects and retention of existing clients. One litigation partner in a large national law firm discovered just that, upon her return from maternity leave following the birth of her second child. While her partners were seemingly supportive of her first maternity leave, they were distinctly less so of her second. When she returned to work, she discovered that many of her clients had been referred to other lawyers in the firm who were determined to hang onto them. Shortly thereafter, she left the comfort of the large firm and started her own sole practice, working from her home. She is now blissfully happy and financially sound as a sole practitioner.
Now for some good news. I know of another partner in a downtown firm who voluntarily left the partnership to raise her children while they were young and then rejoined her old firm after her children were grown, first as an associate and then as a full partner. Similarly, I know of several, although admittedly not many, capable and competent partners in large law firms who are happily practising law and raising young children at the same time.
This leads me to the first truth that women in law must learn: know yourself, be crystal clear and brutally honest with yourself about what you value most in your life and then live your life accordingly. Put another way, if you follow your passion, the rest may or may not follow, but at least you won’t be wondering at the end of your life, “what if I had lived my life differently?”
There is no question that the practice of law is demanding, stressful and requires a huge time commitment. Sometimes, it is important to have the courage to admit that to yourself and move on to other pursuits that better suit you and what you value most in life.
If having children and being a mother are important to you, then you may not want to wait until you are fully established in your legal career before you do so, because by the time you have concluded that the time is right, it might just be too late. If a firm’s maternity leave policy or the availability of flex-time or part-time work arrangements is important to you, do the due diligence before you join the firm, not after.
Consider the second truth for women in the law: do not define or limit yourself by others’ stereotypes and perceptions of what women ought to be. Be strong enough to resist societal norms or myths that limit women’s achievements. Not all women want or are cut out to be mothers or caregivers. Assertive women are sometimes portrayed and joked about as “ball busters” or “pseudo-men.” That sometimes leads us to downplay our abilities and skills at work, because we want to be popular or well liked, and we don’t want to be one of “those” women in law firms who are denigrated for not having a life or family outside of work. By doing so, we short-change ourselves because we fail to set our goals high or bold enough.
When it was suggested to me that I should consider running for the presidency of the Law Society of BC, I was initially reluctant to do so. In the entire history of the Law Society, there had not been one single person of visible minority who had served as President. I was also conscious of the fact that I was not in mainstream private practice, having moved on to being corporate counsel after seven years of private practice. I felt that those two would be deadly strikes against me. Then, of course there was that third strike — I was a woman, and there had only ever been three female Presidents in the 120 plus year history of the Law Society. How could I possibly win against my older male Caucasian colleagues?
If I had listened to my own misgivings and foreclosed my own opportunity to run for the Presidency despite others’ encouragement, I would not be President today. So, it is important for all of us to take a chance once in a while and dare to be bold and risk failure, to spur us on to greater achievement. I say that because the first time that I ran for the Law Society presidency, I was unsuccessful and I was crushed by my failure, but I put my pride aside and ran again for the position the following year, and lo and behold, I won!
I turn now to the third truth for women in the law: recognize that you cannot — and should not — do it alone. The practice of law is a monolithic institution, and you cannot change the structure of institutions overnight. To make any change, you need support and assistance from many men and women. Develop allies in and outside of the law that you can count on to be a sounding board, a promoter and supporter of issues that matter to you.
That brings me to the fourth truth for women in the law. While it’s important to build a network of contacts in the legal community, it’s equally important to find fulfillment outside of the legal profession. Find other outlets for your creativity, abilities and energy. Seek out those things or those people that will add quality, not simply quantity, to our lives, whether it is writing a novel, doing pro bono work, volunteering in ways that are meaningful to us, accompanying our child on a school field trip, or simply finding time to visit a sick friend or elderly parent.
The final thing that I want to emphasize is that for women who are struggling to remain in law, we can choose to respond in various ways to the existence of what is an apparent glass ceiling in the workplace. We can sit back and adopt a “victim mentality” and blame the fact that we are born female for that missed promotion, failure to make partner or get the corner office or land that lucrative client. We can hide our identity and pretend that we are exactly the same as any male lawyers and behave like pseudo-males in the workplace, thereby denouncing our womanhood. We can choose to march to our own drum by going out on our own or establishing small independent law firms with like-minded people.
Or we can do the most difficult thing that there is to do: continue to make our mark in the established law firms, stay actively involved in the legal community and politics, and speak out. By speaking out, we can help to effect larger, institutional change for the betterment of all women.
I believe it is time to move on beyond lamenting the presence of barriers to women succeeding in law. Feeling victimized means we are perpetually stuck. Instead of accepting the existence of a glass ceiling for women, we should have the confidence and the courage to say “no” to the acceptance of the status quo. We can do that by speaking out publicly for the contributions that women make to the practice of law, by encouraging and supporting women to stay in the practice of law, being a mentor to female junior lawyers and gathering political and financial support for the advancement of women in all arenas.
Be proud that you are female and that you have the perseverance, the stamina, the courage and the heart to remain in a difficult profession that is devoted, above all, to selfless service to others.
I applaud you all.