Vol. 75, No. 10, October
Does Gender Still Matter in the Legal Profession?
This article presents recent historical and statistical information
about women in legal practice and discusses how women have - or have not
- fared in the legal profession in terms of law practice issues. From
this context, readers can draw their own answers, their own sense of the
relevance of gender in legal practice.
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
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
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
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
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
Hannah C. Dugan, U.W. 1987, practices at the Legal
Aid Society of Milwaukee Inc. She has been active in local and state bar
leadership, including serving in 1999-2000 as the third woman president
of the fifth oldest bar association in America: the Milwaukee Bar
Association, founded in 1858.
This material originally was presented at the Seventh Annual
Marquette University Women's Studies Conference in March 2001. The
conference theme was "Women and the Law: Legal System/Legal Fictions."
The information has been updated and edited for written
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
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.
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
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
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).
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
11 Barbara A.
Curran, Women in the Law: A Look at the Numbers (ABA Commission
on Women in the Profession, 1995).
Association for Law Placement, Women and Attorneys of Color at Law
Firms - 2000 (2001).
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.
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.
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
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,
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
at 27, exhibits 23 and 24.
at 28, exhibit 26.
Association for Law Placement, Women and Attorneys of Color at Law
Molvig, The Economics of Practicing Law: A 1998 Snapshot, 72
Wis. Law. 14 (November 1999).
Association for Law Placement, Availability and Use of Part-Time
Provisions in Law Firms, 2001 (2002).
Resnick, Gender in the Courts: The Task Force Reports, The
Woman Advocate, 1996.
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.
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).
Fairness Strategies: Maximizing Our Gains (State Justice Institute,