It has been one hundred and thirteen years since the Female Law
Practitioners Act was passed in 1896 and enabled women to join the
New Zealand legal profession. The following year, Ethel Benjamin,
an Otago University graduate, became the first woman to be admitted
to the Bar. Today, male lawyers still outnumber women, constituting
58% of the profession.
Room at the Top
Women are noticeably absent from senior positions at law firms
and account for just under 17% of partnerships in the 26 firms with
over 10 partners - a figure that has remained static . Many of the
largest firms are still dominated by men: Bell Gully has a mere 4
female partners out of 43 (9.3%), Russell McVeagh only has 4 out of
37 (10.8%), Kensington Swan and Buddle Finlay both have 4 out of 35
(11.4%), and Chapman Tripp has 6 out of 51 (11.8%) . A similar
pattern is seen in the Judiciary with only1 in 4 females. Some top
firms are making progress - in 2004, AWS Legal led the way with
27.3% female partners and more recently Anderson Lloyd had the
highest proporiton of female partners, at 40.7%.
A Quiet Exodus
In New Zealand there is a "quiet exodus" of women from the legal
profession, as shown in the graph below.
Initially, female lawyers dominate the legal profession; indeed,
women account for 62% of Admissions to the Bar. There is a
substantial drop in numbers after five years since admission and
then numbers decrease steadily. The number of male lawyers,
however, remains relatively static and it is not until 35 years
after admission that theirnumbers decrease.
A further significant observation is that women earn
substantially less than their male counterparts. Male lawyers as a
group earn an annual average income of nearly $91,000 whereas women
make scarcely $58,000 - a gap of $32,000 . Furthermore, approaching
half of male lawyers earn more than $100,000 compared to under 15%
of female lawyers in this income bracket . As shown by Figure 1.2,
women peak at the $50-70,000 income bracket.
What might explain these curious and unsatisfactory statistics?
And what can be done to improve the position of women practising
law?
Explanation 1: Human Capital Theory
Human Capital Theory states that women invest less time in their
professional lives than men due to family commitments. Therefore,
men achieve a more prominent position within the legal system
because employers see them as more dedicated and stable. This
explanation fits the New Zealand model, as shown by the decreasing
number of female lawyers in the graph above. Female graduates
initially dominate the top firms, but leave after a few years when
they decide to have children. In the 2002 Women's Consultative
Group survey, there was a general consensus that women cannot
juggle early motherhood with full time legal work, with one woman
commenting, "Clients pay big money for immediate attention and
you have to deliver on that." Thus, women move into more
flexible and less stressful, but relatively lower paying areas,
such as government, corporate in-house counsel or practise as
barristers sole.
Many women in the survey initially tried part time work at their
respective firms, but found it was simply "not viable. " One woman
stated,
You work almost as hard as a full-timer, without
the social and other benefits … and you feel neither part of the
workforce nor able to participate properly in activities with
non-working mothers.
However, it was interesting to discover that while many women
found their firms were "genuinely making an effort" to help working
mothers, the organisation simply had to keep up with the
competitive nature of the profession and the expectations of
clients.
This has several ramifications for the position of women in the
legal profession. Not only do large firms pay more and offer more
prestige, they also offer networking opportunities for further
promotion into areas of government, business and the judiciary.
This may help explain why women are underrepresented on the Bench
and also the fact that women make up less than 10% of NZSX Board
Directors.
Explanation 2: Social Capital Theory
This theory suggests that women do not participate enough in
networking opportunities outside of work and therefore, do not fit
in with the rest of the firm. The legal profession is perceived by
many as an 'Old Boys Club' made up of middle aged white men who
smoke cigars and play golf together.As Deborah Hollings, QC, put
it,
Part of the problem is the culture of the bar. Any
professional group that for 700 years has comprised solely men is
bound to have inherited attitudes that may seem unwelcoming to some
different entrants.
So, how can women's position be improved in the legal
system?
Measure and monitor
Measures are needed to keep women in the legal profession for
longer, to increase their chances of being promoted to senior
positions and to higher earning positions.
Deborah Hollings suggested the New Zealand legal system could
adopt a similar approach to Australia. There, the Law Council of
Australia created a working party of representatives of bars, law
firms and corporate in-house counsel. This group produced a
national briefing policy in 2004, designed to promote equal
opportunity for women barristers. The policy stated that in
selecting counsel, all reasonable endeavours should be made to
identity female counsel, genuinely consider engaging such counsel,
regularly monitor and review the engagement of female counsel, and
periodically report on such engagement.
In addition to policy decisions, "both the culture of the
profession and the cultural impediments faced by women in our
society must be tackled" . The 2006 Census of Women's
Participation recommended that women lawyers investigate how the
profession ensures equal opportunities for women. It also suggested
that law firms who have increased female partner numbers should
issue practice guidelines and promote to other law firms. However,
progress has been slow and the 2008 Census of Women's Participation
reported that there are still "significant barriers" to improving
the position of female lawyers and the profession needs to
"radically rethink traditional financial structures, work
environments and cultural norms." This would require considerable
dedication and commitment across the profession...
Most women in the 2002 Women's Consultative Group survey were
reluctant to leave positions in big firms, but they simply had to
sacrifice work for their family. In order to retain women with
families, and, indeed other employees seeking greater balance, law
firms need to ponder how to create practical flexible work options
that do not marginalise careers. Part time work should also be
'part time' - not full time work in half the hours. Remote working
is more easily achievable with today's technology. Flexible working
options will not be necessary forever - women will be able to
gradually increase their hours as their children get older - and
firms who show patience and understanding will be rewarded by
keeping highly skilled staff.
In conclusion
Clear inequalities between the sexes in the New Zealand legal
profession remain, 112 years since Ethel Benjamin was admitted to
the bar. Men stay in the profession longer and consequently
dominate partner positions and thus as a group they earn
substantially more than women. The main reason for this pattern is
that the legal profession is inhospitable to the working mother. If
the legal profession is committed to retaining its best and
brightest, then reforms that allow for "one of the most common life
experiences of adult females" are unavoidable. This can be achieved
by policy decisions, consultation between law firms, and decisions
within law firms to enable women to take on part time or remote
work while balancing employment and family responsibilities.
Select Bibliography
2001 Census of Population and Dwellings: Sex and Occupation by
Total Personal Income For the Employed Census Usually Resident
Population Count, Aged 15 Years+.
2006 Equal Opportunity in the Workplace Agency: Australian
Census of Women in Leadership
D Hollings QC "Equitable briefing practices - women barristers
and the glass ceiling" , updated 2007
A Crittenden "A Conspiracy of Silence", in The Price of
Motherhood: Why the Most Important Job in the World is Still the
Least Valued (Henry Holt, 2001)
William L.F. Felstiner & Alan Bradshaw "Lawyers' lives,
lawyers' income" (2007) 14(1) Int'l J Legal Prof 3
Human Rights Commission Census on Women's Participation in
Governance and Professional Life 2008, 2006 and 2004
New Zealand Law Society Annual Report 2007.
New Zealand Law Society Women's Consultative Group "Brief history of women in the law in New
Zealand", updated 26/10/2001
New Zealand Law Society Women's Consultative Group "The work-life balance dilemma for women - 10 years
on", updated 4/12/2004
D Ogden "Visibility of women lawyers and judges critical,
says Chief Justice", u pdated 2008
R Stringer "Is New Zealand a Post-Feminist Paradise?"
(Pre-publication version) in LivingTogether: Towards sustainable
settlements in New Zealand (University of Otago Press, 2006).
Your Feedback
Acknowledgement
Grace Holgate is a 4th year law student at Otago University.She
contacted us in her search for statistics on women in law as part
of an Ethics assignment on the position of female lawyers in New
Zealand.