Diversity policies meet the competency movement: towards reshaping law firm partnership models for the future

ABSTRACT

Globalisation, commercialisation, and economic pressures following the global financial crisis have produced a ‘new normal’ for the practice of law in private firms, requiring reassessment of the range of skills necessary for success. Scholarship in the ‘competencies movement’ has responded to this need for skills reassessment. At the same time, research and scholarship focused on increasing diversity and inclusion in law firms has blossomed. However, little attention has been paid to analysing synergies in the competencies and diversity movements, and there have been calls for more collaborative research between academics, firms and professional bodies in response to issues of diversity and inclusion. This article presents a collaborative research project between law firms, the Women Lawyers Association of New South Wales, and the Legal Intersections Research Centre at the University of Wollongong on current best practices in diversity in large Australian law firms. It argues that such collaborative projects, with a focus on synergies between the competencies and diversities movements, provide the greatest potential for reshaping law firm practice and partnership models to respond to issues of advancement, attrition, and lack of re-engagement, particularly by women in law firms.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 The Law Council of Australia states that ‘[w]hy women leave the legal profession and do not re-engage is an important issue for the national profession and one which has been a priority for the Law Council of Australia’ (see Law Council of Australia, 2016, available at <http://www.lawcouncil.asn.au/lawcouncil/index.php/law-council-media/news/324-nars>).

2 For a comprehensive bibliography of reports and studies up until 2005, see Hutchinson (2005); for work up until 1999, see Frost et al. (1999). Major reports since 2005 include: Law Institute of Victoria and Victorian Women Lawyers Association (2006); Hutchinson & Skousgaard (2008); Neal (2010); Law Society of New South Wales (2011); Victorian Human Rights Commission (2012); Law Society of New South Wales (2013); and Law Council of Australia (2013). Recent international literature includes: Jaffe et al. (2016); Jackson (2016); Law Society of Upper Canada (2013); and Law Society of England and Wales (2010). Academic scholarship also spans recent decades; see for example Hagen & Kay, 1995; Kay & Brockman, 2000; Thornton & Bagust, 2007; Sommerlad & Sanderson, 1998; Rhodes, 2002.

3 The WLANSW was formed in 1952 and is dedicated to improving the status and working conditions of women lawyers in NSW. Its input is sought by legislative and government bodies on law reform in relation to issues affecting women and children, and its makes submissions on law reform in a range of areas related to women. The association currently has a diverse membership of over 9000 women lawyers.

4 It is anticipated that the larger future project discussed in this article will expand the focus to include minorities. For literature highlighting the presence and experience of minority groups in the Australian legal profession, including LGBTI, Indigenous, Asian Australians, and Low SES groups more generally, see for example Melville (2014); Asian Australian Lawyers Association (2014); Ford (2013); Rodgers-Falk (2011).

5 See footnote 2 for a list of major works.

6 See, e.g., Women Lawyers Association of New South Wales; Submission to the Workforce Gender Equity Agency, 2014; National Association of Women Lawyers 2015 survey on retention and promotion; Rikleen (2015).

7 The 2014 National Profile of the Australian legal profession states that ‘Since 2011, there has been a significant increase in the number of female solicitors in the profession. The number of female practising solicitors increased by +19.3%, while the number of males increased by +5.4%. This suggests that the increase in the overall number of practising solicitors between 2011 and 2014 is being driven by an overall increase in female practising members’; Urbis (2015) 2014 The Law Society National Profile, p. 3.

8 Papadakis & Tadros (2016) Australian Financial Review: <http://www.afr.com/leadership/women-now-24pc-of-big-law-firm-partners-20151216-glp6ly> The author notes that while this figure has increased from 21% in 2014, some of that percentage growth can be attributed to a drop in the overall number of male partners at these firms.

9 Leanne Mezrani, ‘Law's Disappointing Gender Report Card’ (27 November 2014), Lawyers Weekly. Mazrani was reporting on the Workplace Gender Equality Agency figures from the 2013–14 period.

10 American Bar Association, ‘A Current Glance at Women in the Law’ (May 2016), p. 4.

11 In the course of her work, Price regularly observed a gap between what law firms said they were doing to achieve greater gender equity, particularly in relation to the promotion of women within their organisations, and what was actually happening for women in those firms.

12 WLANSW's submission to the Workplace Gender Equality Agency can be found here: https://womenlawyersnsw.org.au/wp-content/uploads/WLANSW-WGEA-submission-2014.pdf.

13 The Federal Workplace Gender Equality Agency is responsible for implementing the Act. (s. 10). Comprehensive information on the WGEA and a link to the Act can be found here https://www.wgea.gov.au/. The reporting requirements apply to all non–public sector employers of 100 or more employees in Australia. The indicative format for the 2016–17 workplace report questionnaire can be found at https://www.wgea.gov.au/sites/default/files/indicative-format-wpp-2016-2017.pdf.

14 The EOCGE commenced in 2001 and is a recognition programme that ‘aims to encourage, recognise and promote active commitment to achieving gender equality in Australian workplaces’. Criteria for the citation cover ‘leadership, learning and development, gender remuneration gaps, flexible working and other initiatives to support family responsibilities, employee consultation, preventing sex-based harassment and discrimination and targets for improving gender equality outcomes’. More information is available at: <https://www.wgea.gov.au/employer-choice-gender-equality/what-wgea-eocge-citation>.

15 WLANSW Law Firm Comparison Table for 2015 is available at: https://womenlawyersnsw.org.au/wp-content/uploads/WLANSW-Law-Firm-Comparison-2015-Table.pdf. For data relating to 2012–14, see: https://womenlawyersnsw.org.au/workplace-practices/.

16 We argue that this dataset uniquely reveals the glass ceilings in that, while other available data can provide a gender breakdown of partnership generally (Australian Financial Review's Law Partnership Survey and LSNSW's Profile of the NSW Profession) and in some cases a gender breakdown of equity partners in large law firms (WGEA reports) and female senior associate rates (Australian Financial Review's Law Partnership Survey), none provide a complete picture or allow a comparison across or within firms in the way that this dataset does.

17 Further investigation of the high percentage of women at senior associate level in Australia is needed. The US National Association of Law Placement stated with respect to the 2015–16 year that ‘the overall representation of women associates has decreased over the majority of the last five years … [i]n 2015 the percentage of women among associates sits at 44.68%, the lowest since 2006’ (NALP, 2016).

18 Altogether, 25.0% of women reported an income of $50,000 or less, compared with only 19.3% of men. At the higher end of the income scale, there was also significant disparity: 43.4% of men reported incomes above $100,000 while only 25.6% of women did so.

19 ‘As women entered mid and later stages of their career there was greater dissatisfaction with opportunities for promotion and advancement, which may indicate discontent at barriers encountered in the progression of their career path. Having children and utilising flexible working arrangements typically occurs at the time when many women are looking to progress to more senior levels. The impact of flexible work practices can hinder this progression, contributing to disproportionately fewer women in leadership positions’ (Law Council of Australia, 2014, p. 78).

20 US figures indicate that the average hours billed by lawyers in large law firms increased from 1200 in 1961 to between 2000 and 2500 in the mid-1990s.

21 Mottershead & Magliozzi (2013, p. 51) note that the ‘new normal’ is ‘a term that has been used from early 2010 to describe the shift in the way lawyers and law firms delivered legal services pre and post the recent global financial crisis’. Lopes (2016, p. 208) also uses the term ‘new normal’ to refer to the intensification of the pre-GFC developments discussed here, along with increasing pressure for faster service, increased quality, and lower fees. Sommerlad also notes the deepening of existing trends in recent years (2016, p. 62).

22 ‘The experiences described by many participants reinforced the perception that there are still barriers and impediments to be faced by women solicitors who wish to progress in their careers, and that these are more obvious in private practice than in the corporate and government segments. It became clear during the discussions that not every woman in private practice aspires to partnership and that there are many definitions of success. However, it was also apparent that women lawyers expect to have the same opportunities as men to progress to senior positions should they wish to do so’ (Law Society of New South Wales, 2013, p. 3).

23 Letter from Gary Ulman, President, Law Society of NSW to Kathryn McKenzie, Executive Officer, Women Lawyers Association of NSW, 4 March 2016.

24 Pinnington & Sandberg (2013, p. 628) conclude that ‘academic researchers have a role to play in developing theories of … [law firms] which represent more adequately issues of employee diversity, professional careers and the glass ceiling, such as the inclusion of women in the equity partnership’. The involvement of practitioners in a study, as participants or as researchers, would be particularly valuable and would overcome access constraints (Lopes, 2016, p. 224).

Additional information

Funding

This work was supported by small grants provided by the Legal Intersection Research Centre and the School of Law at the University of Wollongong, Australia.