To my regular readers, it should come as no surprise that I’m not a fan of the recently announced ABA Initiative on why women lawyers leave the law — or more accurately, “why women lawyers leave Biglaw mid-career.” As I’ve pointed out time and again Biglaw isn’t the end all and be all of success in the law for women, and so long as organizations like the ABA view women-owned law firms as second class citizens in the battle for equality, we’ll never eradicate discrimination in the profession.
I’m not the only woman lawyer who sounds like a broken record. Last week, Jill Switzer, one of my fellow columnists here at ATL penned another column bemoaning the endless initiatives like the one recently announced by the ABA that launch enthusiastically and conclude with lofty calls for action that result in… the status quo. Sadly, after a distinguished 40-year career in the law, Ms. Switzer has grown so cynical about prospects for women that she discourages them from going to law school at all.
But both Switzer and another one of my ATL colleagues, Nicole Black have noticed a promising trend that may actually fix the gender problem at law firms. As Black writes, there’s been a spate of class action discrimination suits against Biglaw over the past few years — and as Black predicts (and I concur), it’s very likely that these lawsuits may bring about change in the legal profession.
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So if change is a coming to law firms through class action litigation, why do we need an ABA initiative now? Call me cynical, but I have to wonder whether the ABA initiative is as much about promoting gender equality as it is about protecting Biglaw from the consequences of its actions. Indeed, Hilarie Bass — the ABA’s current president and champion of the women’s initiative has first-hand experience with the impact of discrimination: her own law firm, Greenberg Traurig was hit with a $200 million gender discrimination lawsuit back in 2012 after a finding by the EEOC of probable discrimination. In fact, Bass defended the firm — which subsequently settled the suit.
These days, law firms are no longer shielded from discrimination suits by threat of adverse repercussions. Back when I was an associate in the early 1990s, most lawyers never considered an action against their law firm for fear that “they’d never find work again,” as Switzer observed in her article. But times have changed and money matters more to law firms than compatibility. In other words, if a woman has a big book of business and Biglaw credentials, chances are she’ll be snapped up by a competing law firm — or may be invited to take a position in-house with one of her clients. Moreover, as the number of female equity partners remains the same each year, these recent discrimination actions take on added credibility.
Given that public shaming can’t stem the tide of discrimination lawsuits against Biglaw, what’s left but the ABA? The ABA Initiative can potentially afford great cover to law firms facing discrimination actions. Firms can send a couple of female partners to participate, hobnob with female general counsel and be able to put on an “of course, we support women” face during a deposition. Alternatively, the ABA Initiative — like all the well-intentioned suits that came before — may lead to the adoption of watered-down requirements for law firms which may also help to mitigate liability in a discrimination suit. But whatever the ABA Initiative may accomplish, one thing is clear: it’s as much about saving Biglaw as it is about helping women.
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Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at [email protected]or follow her on Twitter at @carolynelefant.