Easy answer: Why not?
Sexual harassment and gender discrimination are being rooted out in every other institution, so why not Biglaw? After all, it’s no secret that Biglaw (and its national trade group, the ABA) has an unhappy history of discrimination. Recall that African-Americans were not permitted to join the ABA until 1943.
Oh yes — and gender. (The first woman member of the ABA was not admitted until 1918).
So it’s no surprise that in the age of #MeToo, white male hegemony in Biglaw is being exposed, called out, and challenged, and its Biglaw factories sued.
Longer answer: It’s built into the Biglaw DNA. As I posted here last year, “[a]s long as the profits keep rolling in, why should Biglaw care about gender equality? … Nothing must get in the way of billing, the billable hour, the almost-sacred realization rate, or profits per partner. Certainly not you, lady!”
In other words, the very nature of the Biglaw model — the “iron law” of its existence — makes it “inherently unequal — unequal to all but the ruling few, who happen to be male and white. And for women — who were, after all, only allowed relatively recently into law schools, the ABA, and Biglaw, it is even more unequal — and will continue to be.”
I noted that:
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“Ivy League law schools, being the Biglaw gatekeepers, select those who will ‘make it’ in Biglaw, and train/brand/clone them to fit right in. And they charge an indecent entrance fee to cull out the herd — enough to keep new lawyers indentured to Biglaw for many years – and long enough for Biglaw to make quite a profit until it sends (most of) them packing. … For its part, Biglaw must pay ever-higher salaries so that the associates can and will be enticed (or forced) to stay – and for which the associates are required to work on an assembly line that gets faster and faster each year … And for which client fees must be jacked up ever higher.”
But like all institutions subject to their own “iron law,” Biglaw’s wheels are rusting and slowing down and in danger of finally seizing up as a result of market forces — and the resistance of those who have long been silent.
Is Biglaw’s Strategy A Maginot Line?
As Kathryn Rubino posted here the other day, “What will it take for Biglaw firms to wake up and see that the way they’ve ‘always’ done business is not going to cut it anymore? Despite several iterations of industry reports generously described as tepid, law firms seem entrenched in their stagnant ways, as they remain committed to ‘once-successful strategies even as evidence mounts of their failure.’”
She was referring to the just-issued Georgetown-Thomson Reuters “2018 Report on the State of the Legal Market” which “compares the strategies of many firms to the French strategy of the Maginot Line — a seemingly impregnable fortification that provided a false sense of security until it was easily defeated in the early stages of World War II.”
Yikes — comparing Biglaw to the Maginot Line, which collapsed in a few short weeks and with it the collapse of France? Can things be even more dire in Biglaw than it seems?
The National Law Journal headlined its coverage of this report “New Report Warns of a ‘Wake-Up Call’ for Stagnant Law Firms.” Stagnant indeed! The Maginot Line was not merely stagnant, but a chimera — the product of hubris as well as stagnant thinking.
And there was more from the NLJ: “Strategic blind spots, decision-making inertia and unwillingness to adapt strategies to changing conditions can lead decision-makers to ignore signs that the world has progressed and current strategies may not be working.” And the report does not even take into account the discrimination that is built into the “stagnant” Biglaw model and the major changes in the model which will likely be occasioned by the sheer number of well-reported discrimination lawsuits and the empowering of women and minorities who have long been marginalized.
And Now There’s A New Lawsuit That’s Bigger Than All The Rest.
It was just reported that one of the largest employment law firms in the world — if not the largest — was sued by a female non-equity shareholder for $300 million based upon alleged gender discrimination. Plaintiff, an attorney at the firm since 2002 who represents employers, claims that male shareholders are paid — on average — $110,000 more per year than females. And that women, although making up 58% of the firm’s associates, nonetheless account for less than a third of its shareholders.
Sound like any Biglaw firm that you know? Or maybe … every one?
The firm’s attorney denied the allegations and stated that “[e]qual opportunity has been a core principle … since the firm’s founding, and we do not tolerate discrimination of any kind — gender or otherwise.”
This sure sounds familiar.
I noted in my post last year that a late-2016 Major, Lindsey & Africa survey “found that women law partners average about 69% of the compensation of male partners,” and that “Above the Law also reported at the time on the NYC Bar Association’s 2015 Diversity Benchmarking Report, which stated that ‘[d]espite more than a decade of New York law firms pledging to enhance diversity in their ranks, minority representation within associate and partners levels stalled last year, and attrition rates for female and minority attorneys remained disproportionately high.’”
Will things ever change in Biglaw? Well, there are alternatives. (Shameless self-promotion follows: I escaped Biglaw for such an alternative).
Plaintiff’s attorney in this new action noted that “[w]e are at a cultural tipping point where women in the workplace will no longer tolerate unfair treatment, whether it comes in the form of sexual harassment or, as seems true [here], discriminatory pay and promotion practices that disadvantage women.”
Takeaway
For some reason I am reminded of my first semester Torts professor who smugly mused that his law school class at Harvard consisted of the best and brightest students in the nation. A female student stood up and disagreed — she said that this couldn’t be true because Harvard Law did not admit women when he attended. The prof icily told her to sit down.
She is now a respected judge.
Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at [email protected] and follow him on Twitter at @richard09535496.