How quitting helps women

Diversity policies are a nice idea, but if we really want to keep women in private practice it is profit that will drive the change.
Diversity policies are a nice idea, but if we really want to keep women in private practice it is profit that will drive the change.

I am a minority within a minority: an Asian woman who has been practising law for 15 years and who is still in private practice.

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In 1991, my graduating class was over 50 percent women, and I was confident that my female classmates and I would change the way law is practised. Instead, virtually all of my female colleagues dropped out of the race to make partner, in favour of in-house corporate and government jobs with more “balance.” Consequently, nothing much has changed at law firms, where the culture remains relentlessly unaccommodating to women, to say the least.

Ironically, the very women who abandoned me to go in-house now wield the power to change the firms they left behind.

A law firm is first and foremost driven by profits. Since women who take maternity leave or work part-time are less profitable, there is a reluctance to absorb the costs associated with greater accommodation. Excluded or outnumbered on firm committees, the few women partners who remain have little clout to influence policies. Even some senior women partners are not supportive of proposed accommodations, because they never enjoyed these perks and share the view that part-time practice is unworkable. There is concern that firms adopting progressive policies will lose rainmakers and become unprofitable. There is great resistance to change.

In the fall of 2005, the Law Society of Upper Canada created the Retention of Women in Private Practice Working Group to address the unique challenges faced by women and to suggest programs that will give them more reasons to stay in private practice. The Law Society’s report, released in February, includes a three-year Justicia Pilot Project, full of programs designed to create benchmarks and drive changes at mid-to-large firms.

There is a risk that law firms will want to sign on to the Justicia Pilot Project to use participation as a marketing tool, and only pay lip service to the policies they adopt. For most firms to truly embrace and implement a project such as this, it needs to be profit-driven.

This is where my female colleagues come in. Many of them are now heading up the legal departments of major corporations and institutions. They are uniquely positioned to encourage the implementation of the Law Society’s model policies by awarding legal work only to those firms who demonstrate a true commitment to diversity.  In fact, this business case incentive is already at play in the United States, with Fortune 500 companies awarding work to law firms based on diversity benchmarks, and now awarding more legal work to women-owned and minority-owned firms. Diversity benchmarking surveys, which require law firms to disclose the diversity of their workforce and meet target benchmarks or lose the work, are already making their way to Canadian firms serving American companies. These types of surveys could, in future, be required in awarding government legal contracts as well.

The Justicia Pilot Project is a critical step forward for women in private practise. But on its own, it will not drive the changes it seeks to accomplish. It is the heads of corporate legal departments, many of them women who left private practice, who can be the real instruments of change. Working together, these forces have the power to morph the firms into places where women who left may want to return, or where their daughters may one day want to work.

May M. Cheng is a partner at Fasken Martineau DuMoulin LLP who specializes in Intellectual Property Law. She also served as a Member of the Expert Advisory Group on the Retention of Women in Private Practice Project for the Law Society of Upper Canada.

Illustration by Lori Langille.