Wisconsin Lawyer
Vol. 75, No. 10, October 2002

Does Gender Still Matter in the Legal Profession?

by Hannah C. Dugan

oes gender still matter in the legal profession? This article cannot provide a definitive answer. Instead, the intention is to present some context from which readers can draw their own answers, their own sense of the relevance of gender in legal practice. The first part of this article presents some historical and statistical information from the most recent decades - when women entered law schools in enough numbers to reliably track their professional presence. The second part includes an interpretation of some of the numbers, in general terms. The final part discusses how women have been (or the ways they have not been) integrated into the legal profession.

But one question underlies this article's title: Do we still need to think about law practice issues in terms of gender? My answer is a qualified yes, because (and only as long as) gender affects fairness or creates unseemly biases. And to date, it still does.

Differing career experiences of men and women, and the different perspectives they bring to the table, make it apropos and relevant still to ask about the role and power of gender in the legal profession. An anecdote illustrates my point: When I taught law in Ukraine for a month, I learned some facts about its legal system, a system unfamiliar to Americans. One fact is that women comprise about 70 percent of the 11-year-old Ukrainian judiciary. With the exception of one, every American man to whom I gave that fact commented positively - didn't that statistic speak well of post-Soviet era women doing well in legal careers? Without exception, every American woman to whom I provided that fact responded: Judges in Ukraine must not get paid very much.¹ Life experience and the way facts are analyzed can be informed differently, in part, according to one's gender.

Turning to the Numbers

In 1935 women lawyers in the U.S. constituted 1 percent of all lawyers. It took 20 years to double to 2 percent; another 20 years to increase another 50 percent to 3 percent of all lawyers; and then another 20 years to increase another 300 percent to 16 percent of all lawyers. Today, another seven years later, 29.7 percent of all U.S. attorneys (and 27.4 percent of all Wisconsin-licensed attorneys) are women.²

While women slowly are inching towards constituting 30 percent of all U.S. lawyers, in the last several years women have made up about 50 percent of law students (and in some schools more than 50 percent).³ The growth of the numbers of women enrolled in law school began to take off in the mid-1970s.⁴ Legislation, case law, and changing social norms are some causes of this ongoing growth. A key factor, however, is the often underrecognized effect of Title IX of the Education Amendments of 1972.⁵ Through the decades, there was a dramatic increase from approximately 1,200 women law school enrollees in 1950 to 62,000-plus women students in 2000.⁶

Women Lawyers' Career Paths

Once matriculated and graduated, where do women enter the legal practice employment stream? From a nationwide 1997 snapshot of lawyers, higher percentages of employed women compared to men either pursue or are relegated to public interest law, academia, government, and judicial clerkships,⁷ as shown in Figure 1.

Put another way, out of a smaller pool of women graduates as compared to men graduates, one-third of employed women graduates took (or were offered) government, judicial clerkship, and public interest attorney positions compared to just one-fourth of employed men taking such positions.⁸ These areas of practice statistically are lower paying.⁹ (Interestingly, this snapshot of first legal employers would have looked nearly the same about a decade and a half earlier.¹⁰)

Of those attorneys in private law firm practice, about 40 percent of associates in 1995 were women and about one in seven law firm partners was a woman.¹¹ In 2001, 41.94 percent of law firm associates were women; about one in 6.5 law firm partners was a woman.¹²

Geography changes the representation of women in partnerships. In 2001, women partners were in greater percentages in San Francisco, Miami, Austin, Denver, and San Diego than in Cleveland, Charlotte, Cincinnati, Nashville, and New York.¹³ Milwaukee, the only Wisconsin city evaluated, reported 14.96 percent women partners.

In 2001, women and men lawyers in Wisconsin practiced proportionately along very similar career paths.¹⁴ As shown in Figure 2, the reported divergences are most notable: 1) the smaller number of women in private law firms; and 2) the higher number of women not practicing law, but licensed in Wisconsin.¹⁵

A comparison of licensed Wisconsin lawyers during the last three years shows small increases in the number of women compared to men. This seemingly stagnant number (notably strange in relation to the percentage of women graduating from law schools) can be explained. One reason is that despite earning a J.D., women, in higher proportion than men, may not seek to practice or maintain a license. Another reason is that men attorneys who are retired or semi-retired or in second careers might maintain licenses even though they are not really a part of the active workforce. This practice keeps the licensed men attorney statistics fairly constant, even though many are not actively practicing in the marketplace, which skews the statistics of who actually is out there to retain as counsel.

The next comparison is of the number of attorneys who report to the State Bar that they are not engaged in the practice of law but are maintaining active licensure status. Quite surprisingly, as between men and women, these numbers do not show a lot of change over the most recent four years.¹⁶ But important meaning must lurk behind this seemingly statistical stagnation - a meaning one can interpret and infer when viewing the age spread of "not practicing" men and women attorneys.

As seen in Figure 3, the number of "not practicing" women peaks between ages 30 and 39, a decade important to career development but also during which women are having and rearing children. The number of women "reactivating" into active practice steadily increases over the successive decades. This is not the case for men. The "not practicing" numbers for men steadily increase over each decade of life. The highest number of men "not practicing" is in the 60 to 98 age group, which includes persons who retire, who start second careers, and who die. Therefore, while "not practicing" numbers seem to stagnate over time, a gender difference exists as to when, and thereby why, State Bar members identify themselves as not engaging in the practice of law. And such differences between the genders especially occurring at critical midcareer junctures in career, client, practice, and professional development, affect the career advancement of women in the profession.

Another "not practicing" factor is one's perception of whether one can advance in the legal profession. A 2000 ABA study found that both men and women are less optimistic that women lawyers' prospects for career advancement are equal. Seventeen years ago, 80 percent of men and 72 percent of women believed that the prospects for career advancement were equal between men and women; in 2000 that belief fell to 60.4 percent of men and 52.5 percent of women. Also in this 2000 survey, 44 percent of women lawyers did not believe that women were treated at work the same as men were treated.¹⁷

Integrating Women Into the Legal Profession

So what has been some of the impact of the new legions of women lawyers? Women seem to have some proportionate percentage rate of presence in legal profession leadership. For example, women comprise 23 percent of the ABA's Board of Governors, whereas they comprise 29.7 percent of all U.S. attorneys.¹⁸ But disappointing proportionate rates for women are seen in the judiciary (at 12.86 percent of Wisconsin circuit court judges); in law firm partnerships (at 15 percent of law firm partners and 5 percent of all managing partners nationally);¹⁹ and in law school faculty (at 22.9 percent of professors and 12.5 percent of deans nationally).²⁰ Women law school professors are important for women in the profession, not only as role models but also for their influence on gender bias issues in law student training, and in the different perspectives and gender-based substantive content they can, and often do, bring to legal scholarship.

Notably, the highest percentage of women in academia are in instructor and lecturer faculty positions (with new women faculty occupying 67.5 percent of these positions and women comprising 66.1 percent of all such faculty in 2001),²¹ with high percentages as well of women in visiting professorships (48.5 of new and 42.14 percent of all such faculty).²² These positions often carry lower wages, less long-term financial and professional security, and less prestige than tenured professorships.²³

Women in Practice Settings

How are women faring in the economics of law? Nationally and in Wisconsin women lawyers earn less than men²⁴ ($50,648 versus $69,680 median salary, women's equaling 73 percent of men's median salary). This discrepancy is partly because women work in less prestigious and lucrative areas of law and partly because they are paid less for comparable work.²⁵

Statistically, women earn less in part because of "years of practice" differences and "areas of practice" differences between the genders: compared to men attorneys, neither the number nor percentage of women attorneys is found in age groups overwhelmingly occupied by senior partner attorneys and/or retirees. A 2001 Wisconsin survey bears out some important gender-based differences. One is that full-time women private practitioners' median net income was 48 percent less than that of men private practitioners ($56,000 compared to $90,000).²⁶

Demographically, women lawyers are clustered in the lower age brackets. While new women attorneys might be making more to increase the median gender-based income, the few number of women with 25 years of experience results in a lower women's median net income; just the opposite demographic is true among men. Indeed, men attorneys in practice for 16 to 25 years have a median income of $90,000, while women with comparable experience have a median income of $61,000 (a gap of 32 percent). For private practitioners, the median net income of attorneys with 11 to 15 years of practice is $100,000 for men compared to $56,000 for women (a gap of 44 percent).²⁷

Other factors are in play, including traditional practice structures. Average salaries remain higher for newer men than for newer women attorneys in private practice law firms ($47,500 compared to $42,000 in Wisconsin).²⁸ The percentage of women being hired at the large firms, where attorneys generate higher average income, is slowly increasing (for example, firms of 100 or fewer lawyers consist of 40.13 percent women associates, and firms of 251 to 500 lawyers consist of 43.01 percent women associates).²⁹ Additionally, law firm culture and structures are entrenched in traditional means of and measurements for professional advancement. For example, the billable hour system works against women. Women tend to bill fewer hours to begin with, even when time had been expended (women's average yearly hours of 1,266 compared to 1,469 for men).³⁰ Women with family responsibilities statistically are caught up short: 1) it is difficult to put in the 70- or 80-hour weeks; and 2) the billable hour system does not reward any efforts for efficiency in work habits. Attorneys who bill fewer hours hurt the firm's bottom line. Even though the attorney's work product meets the client's needs, the billing system works against the lawyer's professional development, her partnership track, and her income. Management increases professional responsibility for and entrusts bigger cases to the more "seasoned" attorneys and ones with travel flexibility. Women, often responsible for family care and who take maternity leaves, do not fall into these categories - and their long-term economic stability and advancement can suffer for it.

Further, fewer women than men are in private practice, and women tend to be in solo/small firm practice and, therefore, gross and net less income. They also tend not to practice in substantive law areas that are more lucrative; for example, fewer women practice civil litigation, which can bring in substantial contingency fees and thus higher pay. Instead, women in higher numbers concentrate on areas of practice such as family law that commonly are not as lucrative as other substantive practice areas and that have higher numbers of just simply unhappy clients who cannot or will not pay earned fees.

Law practice structure and part-time employment also need to be mentioned. According to the National Association for Law Placement, about 95.9 percent of law firms make part-time employment available either as an affirmative policy or on a case-by-case basis.³¹ However, only 3.5 percent of lawyers work on a part-time basis,³² irrespective of whether the work setting is a law firm, government office, or public interest entity. Why so few take advantage of part-time job availability is not known, but the speculation is that part-time lawyers will be seen as not being as seriously committed to the law, that a part-time job will grow into a near full-time job with part-time pay, or the belief that certain kinds of work can only be done on a full-time basis.

With respect to gender bias, there still exists what Yale Professor Deborah Rhode calls the "no problem" problem - the misperception that the "women problem" has been solved. In 1980 a gender-bias reform effort was initiated due to several scholarly studies showing that women were being treated differently from men in court proceedings.³³ In 1985, the State Bar of Wisconsin established its Participation of Women in the Bar Committee,³⁴ and in 1987 the ABA established its Commission on Women in the Profession.³⁵ These focused entities were charged then, and continue today, to assess the status of women in the legal profession and to identify barriers to advancement.

In 1988 the Conference of Chief Justices, through resolution, signaled its commitment to fairness in the courts by encouraging all chief justices to establish task forces devoted to the study of gender bias.³⁶ Eight states had formed task forces prior to the 1988 resolution.³⁷ Thirty-one other states, including Wisconsin, formed such task forces after 1988.³⁸ The task forces looked broadly at gender bias in the justice system - including witnesses, litigants, jurors, and judicial and law practice issues.

In the late 1990s, the National Association for Women Judges, the National Judicial College, the National Center for State Courts, the ABA Commission on Women in the Profession, and the National Judicial Education Program collectively called for the task force reports to be dusted off.³⁹ They initiated a project to survey the task forces and their recommendations as a basis for an implementation plan. These entities called for a reassessment of the "no problem" attitude and to challenge the gender bias that exists.

Exist it does. However, women's advancement in law school enrollment, in active practice, and in law-related leadership positions is cause for great optimism and is reason to anticipate that soon we may not need to pose the question of whether gender matters.

Endnotes

¹ Indeed, a disproportionate number of women are judges in Ukraine because the position of judge is not perceived as prestigious and because judicial posts are poorly paid and are further subject to specified limits on outside employment that could supplement low judicial wages.

² ABA Commission on Women in the Profession, A Current Glance of Women in the Law (2001).

³ ABA Legal Education and Admissions to the Bar Section, Legal Education and Bar Admissions Statistics, 2001. Total juris doctorate female enrollment in 2001 was 62,476 (48.9 percent), and male enrollment was 65,134 (51.1 percent); total first year female enrollment was 22,254 (50.67 percent) and male was 21,659 (49.33 percent). These statistics do not include law students pursuing other than juris doctorate degrees.

⁴ Id. In the 1975-76 academic year, 23 percent of enrollees were women.

⁵ 20 U.S.C. § 1681 states that, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of or be subjected to discrimination under any educational programs or activity receiving federal financial assistance." See also National Coalition for Women and Girls in Education, Title IX at 30: Report Card on Gender Equity (June 2002) at 8-13.

⁶ ABA Legal Education and Admissions to the Bar Section, First Year Enrollment in ABA Approved Law Schools, 1947-2000 (2000). The total numbers of women law students pursuing juris doctorate degrees and the percentage of women in each year follows: 1950 - 1,265 students (3 percent); 1960 - 1,296 students (3 percent); 1970 - 6,682 students (9 percent); 1980 - 40,834 students (34 percent); 1990 - 54,097 students (43 percent); 2000 - 60,633 students (48 percent).

⁷ National Association for Law Placement, Selected Class of 1997 Employment Report and Salary Survey Findings (1998).

⁸ Id. The total percentage of women is 32.8 percent: 4.2 percent public interest, 14.2 percent judicial clerkships, and 14.4 percent government. The total percentage of men is 25.1 percent: 1.8 percent public interest, 10.1 percent judicial clerkships, and 13.2 percent government.

⁹ See, for example, National Association for Law Placement, Jobs and JDs: Employment of New Law Graduates - Class of 2000 (2001), in which the national median reported salaries are $34,000 for public interest practice, $40,000 for judicial clerkships, and $40,000 for government practice, while private practice starts at $80,000 - twice as much.

¹⁰ Barbara A. Curran and Clara N. Carson, The Lawyer Statistical Report: The U.S. Legal Profession in the 1990s (ABA Foundation, 1994). In 1980, 56 percent of women were in private practice, as compared to 52.6 percent in 1997.

¹¹ Barbara A. Curran, Women in the Law: A Look at the Numbers (ABA Commission on Women in the Profession, 1995).

¹² National Association for Law Placement, Women and Attorneys of Color at Law Firms - 2000 (2001).

¹³ Id. San Francisco (21.81 percent), Miami (21.95 percent), Austin (19.5 percent), Denver (22.41 percent), and San Diego (21.10 percent) were the five cities (from among 38 evaluated) with the highest percentage of women partners in 2001. The "low percentage" cities were Cleveland (13.42 percent), New York (13.68 percent), Birmingham (10.08 percent), Nashville (12.50 percent), Columbus (13.94 percent), Cincinnati (12.46 percent), Richmond (13.13 percent), and Charlotte (8.79 percent). Increases in the number of cities with lower percentages of women partners is a disturbing trend.

¹⁴ Statistical information on Wisconsin lawyers is based on State Bar of Wisconsin active membership records as of May 2002. Upon annual renewal of mandatory State Bar membership, which is required to maintain "active" status, attorneys identify themselves by gender. Of the total 20,665 licensed attorneys, 72.6 percent are men and 27.4 percent are women. Additionally, each attorney must certify that the attorney is maintaining a trust account or is practicing under circumstances that provide exceptions to the trust account requirement. Identification of practice setting is compiled from this data.

¹⁵ Of women licensed in Wisconsin, 33 percent (1,876) are in private practice and 38 percent (2,131) are "not practicing," compared to 47 percent (7,036) of men in private practice and 31 percent (4,631) "not practicing." For all attorneys with Wisconsin licenses, women constitute only 21.05 percent of all private practitioners and yet disproportionately constitute 31.5 percent of all not practicing attorneys.

¹⁶ In 2002, 6,762 (32.7 percent) of all Wisconsin-licensed attorneys identified themselves as "not practicing." Of these, 2,131 (31.5 percent) were women and 4,631 (68.5 percent) were men. While 37.66 percent of all women attorneys stated they were not engaged in the practice of law, 30.8 percent of males so identified themselves.

¹⁷ Women Lawyers Less Optimistic, 73 Wis. Law. 7 (October 2000) (citing A.B.A. J.).

¹⁸ ABA Commissi on on Women in the Profession, A Current Glance of Women in the Law (2001).

¹⁹ Deborah L. Rhode, The Unfinished Agenda: Women and the Legal Profession 14 (ABA Commission on Women in the Profession, 2001).

²⁰ Richard A. White, Statistical Report on Law School Faculty and Candidates for Law Faculty Positions (Association of American Law Schools, 2000-01).

²¹ Id.

²² Id.

²³ Id.

²⁴ State Bar of Wisconsin, The Economics of Law Practice in Wisconsin: 2001 Survey Reports, 74 Wis. Law. 6, at 28 (December 2001), exhibit 26 (as revised).

²⁵ Id. at 27, exhibits 23 and 24.

²⁶ Id. at 28, exhibit 26.

²⁷ Id.

²⁸ Id.

²⁹ National Association for Law Placement, Women and Attorneys of Color at Law Firms-2000 (2001).

³⁰ Dianne Molvig, The Economics of Practicing Law: A 1998 Snapshot, 72 Wis. Law. 14 (November 1999).

³¹ National Association for Law Placement, Availability and Use of Part-Time Provisions in Law Firms, 2001 (2002).

³² Id.

³³ Judith Resnick, Gender in the Courts: The Task Force Reports, The Woman Advocate, 1996.

³⁴ Wisconsin Equal Justice Task Force report, appendix B, at 1 (January 1991). The committee's mission is to assist women in achieving full integration and participation in the legal profession.

³⁵ The commission's mission is to secure the full and equal participation of women in the bar, the legal profession, and the justice system.

³⁶ Myra C. Selby, Examining Race and Gender Bias in the Courts: A Legacy of Indifference or Opportunity? 32 Ind. L. Rev. 1167, 1169 (1999).

³⁷ Id.

³⁸ Id. at 1170.

³⁹ Gender Fairness Strategies: Maximizing Our Gains (State Justice Institute, May 1997).

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