(Additional data supplied by Ron Pol and from the NZ Census
of Women's Participation 2008 as well as the NZ Law Society Annual
Report 2007).
The legal profession is perhaps a late-comer to change, even as
many of its members forge ahead. Although no-one today would object
to women lawyers, it seems that the status quo will always have its
staunch defenders, even in the face of an inevitable change to
reflect the modern practice of law.
For example, although New Zealand was a world leader in women's
suffrage - strongly supported and encouraged by individual (male)
lawyers with a clear vision for the future - the established
profession remained a bastion of opposition to change within its
own ranks even as society evolved around it. On gender equality,
notwithstanding the foresight of many lawyers, the legal profession
was, and in other respects today remains, marooned in the
backwaters of the past.
Status quo
The difficulties of nineteenth century women being recognised by
the established profession bear startling similarities to the
profession's twenty first century leaders carefully shepherding
through the so called 'reform' of the Lawyers and Conveyancers Act
2008. In many respects, both seemed designed to preserve the status
quo and to resist change in the face of inevitable progress.
Throughout the 1880s and 1890s New Zealand refused to allow
women to practise law even though the 1881 census showed that women
represented a quarter of the people working in professional
occupations. By comparison, in that same year, women had been
admitted to the Bars of 14 American states. Gill Gatfield's 1996
book Without Prejudice: Women in the Law records a
remarkable path of resistance to change, resulting in 'reform'
legislation that, in relation to women, simply preserved the
'tradition' and status quo, in which only men could be admitted as
barristers and solicitors in New Zealand.
'Person' does not include 'Woman'
In 1881, backbench MP Sir George Grey, a former colonial
governor and declared liberal, introduced the Law Practitioners
Bill as a means of 'throwing open' the New Zealand legal
profession. Grey's objective was reportedly not that more people
would practise law but instead, that by developing a less regulated
model and liberalising entry requirements, a pool of talent might
be created to help advance New Zealand's interests in many
fields.
For the established profession, in which entry requirements
suited to the privileged classes were described as "integral to the
status, and hence the wealth, of the profession", Grey's Bill
signalled disaster. The profession was particularly sensitive to
competition, consistently blocking any inroads into lawyers'
conveyancing monopoly.
Although the prospect of women lawyers was seemingly an
unintended consequence of Grey's Bill, this soon became a focus
point of discussions within the law societies and Parliament. The
Bill provided that 'every person' over 21 years of good character
who passed the requisite examinations would be entitled to be
admitted as barristers and solicitors. A lawyer and the MP for
Otago, William Downie Stewart remarked in Parliament that 'person'
might include 'women'. This was clearly too much for the
profession, prompting urgent meetings of the Auckland, Wellington,
Canterbury and Otago District Law Societies, and a deputation to
Parliament with an important 'clarification'.
Although strenuously opposed by some parliamentarians, the
ensuing parliamentary debate favoured the views of the legal
profession and narrowly resulted in the introduction of the word
"male" before "person".
Although the status quo was preserved, Gatfield notes that
Frederick Whitaker, also a lawyer and son of the Attorney-General,
sounded a warning:
Considering the number of motions and bills they
had on the Order Paper to give voting power to women, it was an
important question also whether they should not, as in America and
other places, admit women to practise at the Bar.
In part due to hard economic times, the spectre of competition
suppressed discussion of equality even as the women's suffrage
movement was gaining ground. It was another fifteen years before
women were at last legally allowed to practise law in New Zealand,
from 1896.
Not the Rule, but the Exception
Even as change occurred at the end of the nineteenth century,
the Minister of Education William Walker noted: 'It was absurd
to say that a large number of women must be lawyers... That was not
likely to occur. It would not be the rule, but the exception, that
women would become lawyers'.
Women were indeed to be the exception, for a very long time.
Even in 1936, forty years after women were allowed to practice law,
there were only 7 women lawyers, representing less than half of one
percent of the 1717 practising certificates issued that year.
In 1977, however, as the proportion of women lawyers approached
5%, the New Zealand Law Society annual reports began to record the
number of practicing certificates issued to women. Since 1977, the
number of practicing certificates issued to women has rapidly and
steadily increased, from 10% in 1982, to 20% in 1989, 30% in 1997
and 40% in 2006, as illustrated in Fig 1.
A Changing Profession
Lawyer numbers, both male and female, have grown rapidly,
particularly since the 1970s, yet the overall numbers alone can
sometimes obscure the changing shape of the legal profession
itself.
Examining growth rates in terms of the proportion of lawyers
engaged in each of the different ways in which lawyers practise law
helps reveal how the fabric of the legal profession has inexorably
changed and continues to evolve.
Three Ways of Practising Law
New Zealand's 10,523 lawyers, based on the number of practicing
certificates issued in 2007, work in three quite distinct ways. Two
thirds of lawyers work in private practice, as partners or
employees in law firms - ranging from sole practitioners and
specialist firms to the mega-firms with hundreds of lawyers. These
lawyers are available to the public.
Almost a seventh of the profession practise as barristers,
namely lawyers who deliver specialist advisory and advocacy
services. Barristers are not generally available directly to the
public except through the instruction of other lawyers, whether in
private practice or in-house.
The last group of lawyers are in-house counsel, currently nearly
a fifth of the legal profession. Employed by or contracted to
corporate, government and other agencies, these lawyers typically
provide legal advice only to their employer organisation. They also
manage the provision of legal services to their organisations by
external lawyers, ie law firms and barristers.
Overall, between 1998 and 2007, the number of practising
certificates overall has grown by 32%. However, this masks widely
different rates for the three different types of law practised, as
shown in Fig 2.
Fastest growth in-house
The number of lawyers joining the in-house profession has grown
fastest, at 93% growth over 10 years compared with 32% growth in
total practicing certificates issued generally), or 9% compounding.
To put this in context, as lawyer numbers overall continued to
expand, Fig 3 illustrates the growth of this group of lawyers as a
proportion of the legal profession. From 13% of the profession in
1998, 10 years later in-house counsel represent over 19% of New
Zealand's legal profession; in-house counsel represents nearly 50%
more of the profession than they did only a decade before.
This rise is even more remarkable given that, as a result of
systemic under-reporting, the strong growth of the in-house
profession likely under-represents the true number of in-house
counsel.
This is because, before the Lawyers and Conveyancers Act 2008
came into force in August 2008, unlike other members of the legal
profession, in-house counsel did not always need practicing
certificates. As a result, some corporate and government
organisations paid for practicing certificates for only some
members of their legal departments.
Where the Women Are
Overall, women make up 42% of lawyers in NZ. At only 36% women,
however, barristers have the lowest proportion of women of any of
the three main branches of the legal profession, dragging down the
overall average. Private practice is about 40% women. In-house
counsel is the type of law practice estimted to have the highest
proportion of women, at around 55%. This may reflect the perception
that there is better work flexibility to be achieved in-house,
certainly for public sector employers where the proportion of women
at senior levels can range between a third and a half of all senior
staff. By comparison, scarcely 20% of principals in private
practice in NZ are women, and this number is even lower in the
largest 25 firms.
Where the Women Will Be
Although the rate of growth in the practising certificates held
by women appears to have slowed in recent years, a simple linear
extrapolation based on the thirty years to 2007 suggests that women
might represent 50% of the profession by about 2013.
Extrapolating instead from 1997, with the more gradual growth of
the last few decade, there is a delay in the number of women
lawyers reaching equality of a further two years, to 2015, as shown
in Fig 4.
Other areas of the law are forecast to take considerably longer
to reach equality. Based on present growth rates it might be nearly
a further decade - 2023 - before gender equality is matched in the
ranks of New Zealand barristers. And similar linear extrapolation
of the growth of women principals since 1993 suggests that women's
path to equality of numbers at this senior level may not occur
before 2050, another 40 years!
Thus, nearly 120 years after the legal profession's leadership
finally agreed that 'person' might include 'women' there is clearly
still some way to travel.
Slow Progress, then as now
Although today's leaders may have described as 'reform' such
changes as have occurred, nineteenth century leaders simply said
'no' to change. The result, however, is much the same: resistance
to change, and slow progress. As with the eventual acceptance of
women lawyers, perhaps only after the inevitable liberalisation of
the profession finally occurs (for example, with a less equivocal
and express focus on the consumer, and with law firms eventually
able to access business capital and ideas, as in every other
industry and like their colleagues overseas) will the established
profession recognise that change to 'traditions' more accurately to
reflect modern society and a progressive profession will actually
bring more benefits to consumers, and to lawyers themselves, than
the usual fears accompanying any change.
Acknowledgement
Ron Pol, Director of professional services firm Team Factors
Ltd, helps organisational clients maximise their value of legal
services and helps professional services firms transition from
client focus to a more powerful client perspective.
With a background in law and economics, Ron is past President of
NZ's representative association for in-house counsel, former
General Counsel for public and private sector organisations, and
has worked in legal roles in London, New Zealand and Asia. With
over 150 articles in legal and business publications globally, Ron
is often invited for thought leadership on maximising effectiveness
of the legal function, client-lawyer relations, and the future of
the legal profession.
Contact:
Tel: +64 4 562 8444
ronald.pol@teamfactors.com
PO Box 41-036
Wellington 5047
New Zealand
www.teamfactors.com