O mother, where art thou?

The Law Society of Upper Canada's pilot program is covering practice costs for new parents

By Crystal Luxmore

On Tuesday December 1st, 2009

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O mother, where art thou?Jennifer Thomas was building a thriving little practice helping tomato farmers in Leamington, Ont., buy real estate, write wills and get divorced. Then she got pregnant. She worked until her Jan. 4, 2005, due date, had a little boy and was back in the office 20 days later. With no access to Employment Insurance or benefits, the sole practitioner had little choice but to get back to work, or watch her practice fall apart.

Thomas’s second baby was born this past June. And like the previous time, she worked right up until the birth, even showing up in court the day before her June 18 due date, tote and files in hand. But this time Thomas took three months maternity leave thanks to the Law Society of Upper Canada’s Parental Leave Assistance Program (PLAP). Launched in March 2009, the three-year pilot project provides a new parent with $750 a week, to a maximum of $9,000, to cover overhead costs for a practice. LSUC members in firms of five lawyers or less who do not qualify for EI can apply.

PLAP is part of a major effort by the Law Society to end the decades-long, do-or-die approach facing female lawyers in private practice who want to have children. And it’s needed. Over half of law school graduates in Ontario are female and they are two and a half times more likely than men to leave private practice, according to LSUC’s Retention of Women in Private Practice Working Group. Furthermore, statistics in the working group’s final report indicate women are more likely than men to leave their firms before making partner. Such turnover is costly — an estimated $315,000 for each four-year associate.

PLAP, aimed at retaining female lawyers in small firms, follows on the heels of the Justicia Project, which the Law Society introduced in November 2008 for female lawyers at medium and large firms. Justicia was launched with the hope that it will “create a shift in our legal culture to ensure women lawyers have practices in which to thrive and lead,” says Laurie Pawlitza, an LSUC bencher and co-chair of the Law Society’s Retention of Women in Private Practice Working Group.

But Thomas’s experience indicates the solution will take more than a $9,000 subsidy. She’s finding it tougher this time to retain her practice. Thomas’s husband is a self-employed consultant and her mother, who cared for her first son, was recently diagnosed with pancreatic cancer. So Thomas is trying out a two-day workweek. “Maybe this is going to be it,” she says. “If I can’t find help and financially, if it doesn’t make sense, maybe I’m just going to close up shop, raise my child until he’s school age and then go back and do something else — teach at university, go back to a firm or open up my practice again.”

In medium and large firms, having a family and a career looks easier, at least on the surface. Twenty years ago maternity leave was done quickly and quietly, with leaves typically running no more than three months. Today women are taking longer leaves, a “progressive sign,” according to Toronto-based consultant Sheena MacAskill, a former litigator who coaches lawyers and advises firms on implementing programs for new parents.

But some firms still don’t have even basic guidelines in place. Pawlitza says that as co-chair of the working group, she had been surprised to learn that many of the larger Ontario firms did not have written policies on maternity leave and the majority did not have parental or paternity leave policies. “One woman told us, ‘It’s like every time someone gets pregnant, it’s the first time.’ And the woman ends up wondering, ‘What will they do for me?’ There’s a need for certainty.”

Justicia, which asks firms to formally pledge to introduce supportive policies and programs for female lawyers, is meant to provide that certainty. So far, 55 Ontario firms have signed on and appointed a firm representative. These reps are collaborating on developing best practice guides to maternity leave, paternity leave and flextime.

The firms also received a template to collect data on gender demographics, but they are not obligated to share these statistics — or indeed to share anything — with the Justicia group. Instead, the Law Society is relying on peer pressure and competitiveness to motivate firms to make changes voluntarily. “A lot of things developed will be publicly available for lawyers to look at and compare and contrast with what their firm is doing,” says Pawlitza.

Justicia is a first in Canada and is being watched by other provincial law societies. But with no benchmarks and no obligation for firms to report on whether the number of female partners or associates is changing, there is no way to tell how much — or even whether — progress is being made. Nevertheless, Josée Bouchard, equity adviser for the LSUC, argues targets are not necessary. She says the pledge itself is the most important component and when employers sign on to Justicia, law students expect the firm to be progressive. That, in turn, adds more pressure for change.

The Bar Association of San Francisco (BASF) took the opposite approach and has the results to show for it. In its efforts to advance women in the legal profession, the BASF has taken the position that targets, in fact, do matter. Its No Glass Ceiling initiative, launched in April 2002, also asked firms to pledge to increase opportunities for women lawyers. But signatories had to commit to benchmarks: retaining 25 percent female partners by the end of 2004; and having at least one female chair or managing partner by the end of 2005. By July 2005, 63 percent of responding firms reported having at least 25 percent women partners, compared with 22 percent two years before, and 69 percent had at least 25 percent female managers. The targets have now been raised and extended into 2010.

Yolanda Jackson, the BASF’s deputy executive director, says the program works because it has both guidelines and qualitative goals. Numbers, she says, tell law firms that discussion time is over. “As an industry, we’ve been talking about this for 20 years,” Jackson adds. “We are beyond dialogue. Targets help people compete because you know that you’re all striving to meet that 25 percent.”

In Ontario, young lawyers want to see concrete results. “If somebody claims to be A, B or C, I just do the research,” says Maria Sirivar, a third-year associate at Adair Morse LLP. “I go on their website and look at the proportion of women to men who are partners.”

Results are not driven by policy alone. Firm culture has to shift, too. Sirivar became pregnant when she was an articling student at a major Bay Street firm. After she returned as an associate, she noticed her initial workload was considerably lighter than before. Sirivar says she was surprised by the change. “People tend to assume you’re not available to work on certain types of files. They assume you need to leave early and that decision is made for you.” She started looking for examples of senior women in the litigation department who were raising young children and came up short. “One partner was expecting and a number of associates all had their babies right before I did. Some didn’t come back and some went back on maternity leave.”

Her search for, among other things, a more female-friendly environment led her to Adair Morse, where she started in April. “I get lots of great work, I’m very busy, but I also have a lot of flexibility with my time,” Sirivar says. “I come in super early so I can get home in time for dinner. As long as you get the work done, it doesn’t matter when you do it.”

Some experts blame the billable hour culture as a barrier to equality for female lawyers with families. Sirivar, however, disagrees that it’s the root of the problem. “If you’re in an environment where people want to be seen at the office at 6:30, a time when most moms and dads are making dinner, it creates a huge problem for working moms,” she says. “But if you’re in an environment that doesn’t place a premium on face time, people can still achieve their targets.”

Others agree that face time is the bigger issue. In fact, Deborah Epstein Henry, founder and president of Flex-Time Lawyers LLC, a U.S. consultancy with a focus on retaining women in law, says the billable hour really affords law firms tremendous flexibility. In The Women Advocate, a newsletter for the American Bar Association, she writes: “It enables firms to generate the same revenue from someone billing at home or at work. However, that flexibility has never been fully capitalized upon partly because of the threat to the ‘face-time’ culture.”

A few firms are working to address gender bias by striking dedicated committees on the issue. Last year, Stikeman Elliott LLP formed a subcommittee on women’s initiatives comprised of men and women from a number of the firm’s other committees, from students to management. For the last five years, Stikeman Elliott has also provided a personal career coach to help women returning from maternity leave ramp up their practice, a measure an increasing number of firms are adopting.

Firms are also reaching out to women when they are on leave, the time when they’re most likely to decide not to return to work. Every two months, Blake, Cassels & Graydon LLP has a lunch for women with children and invites women on leave to come and they often bring their babies. Both Stikeman Elliott and Blakes emphasize an individual, women-driven approach to managing the transition to and from maternity leave. And both offer flextime arrangements. But experts caution the move toward flextime could be dangerous if not carefully managed. They warn of the rise of the so-called “mommy track” or “pink ghetto,” where lawyers who take time out to raise children are less likely to make partner and more likely to earn less if they do.

Both men and women throughout the legal profession generally accept the notion that women who go on lengthy maternity leaves could be held back on the partnership track compared to their non-leave taking colleagues. Yet the Ontario Human Rights Code states every person has a right to equal treatment with respect to employment without discrimination because of sex, including the right to equal treatment without discrimination because a woman is or may become pregnant.

But Kirby Chown, a longtime champion of women’s rights in the legal profession, says making partner isn’t black and white. “If a woman took two one-year maternity leaves in the period leading up to partnership, the expectation is she would be behind on skills,” says Chown, who recently retired from managing partner at McCarthy Tétrault LLP “If she took one six-month maternity leave, maybe she wouldn’t be behind.”

The solution from female managing partners and other senior women interviewed for this article seems to be to “Act Like a Man.” Their advice ranges from: have children early but don’t take more than four to six months off; delay having children until you make partner and then don’t take more than 17 weeks off; and make sure you have a fabulous nanny or husband to take care of the household.

But Maria Sirivar sees a different solution: demographics. “My generation, by sheer numbers, will force change irrespective of any organized activity. It’s a bottom-line, business-case perspective; lots of lawyers are close to retirement and there will be a huge gap.

“If half of the people coming out of law school are female, by necessity employers will have to adapt to changing demographics. You’ll have people like me saying, ‘I’m going to have my children and be a great lawyer.’ ”