Women in the Profession of Law

Why a special article on women in the profession, when women today constitute a third to a half of law school classes, occupy prestigious positions from a seat on the U.S. Supreme Court to chair of the American Bar Association's Litigation Section, and when in 1991, Minnesota became the first state with a majority of women on its supreme court? Despite the vast strides that allow women lawyers to practice successfully and happily in every area of the profession, nowhere on the continuum from law school to the judiciary have women as a group attained full equal opportunity and professional acceptance.

Women entering the profession need to know what the remaining barriers are in order to recognize them as barriers and be prepared to deal with them. Men entering the profession should care equally about these barriers for several reasons.

Some barriers result from beliefs about the proper nature and role of women so deeply rooted in our culture that even men genuinely committed to equality perpetuate them unwittingly. The barriers labeled "women's issues," because they involve structuring work to accommodate family life and children, are in fact issues for both sexes. The exclusion of "women's issues" and their viewpoints from law school and the profession has seriously compromised lawyers' abilities to represent their women clients.

Finally, it is a stock joke that law school teaches you to think like a lawyer: valuing rule-bound thinking over human experience and squeezing out all the passion and compassion. This way of teaching and practicing law is being questioned by students and scholars who find it antithetical to their personal morality and therefore a barrier to their participation in law school and the profession. There are men, too, who during law school and later in their professional careers as lawyers and judges have wondered where their values went. The exploration of this issue being spearheaded by feminist legal scholars, should be of concern to everyone at every stage of professional life.

Finding a Professional Style

Sociologists use the term "double bind" to describe the dilemma facing all professional women in establishing a behavioral style that is both professionally effective and personally comfortable. The woman who displays stereotypically feminine traits such as passivity, dependence, deference, soft spokenness, and emotionalism is perceived as too soft to do the job. The woman who displays the so-called "competency cluster" of traits associated with men-aggressiveness, independence, ambition, rationality, action-is put down as pushy and abrasive. This is a major problem for women attorneys throughout the country.

The problem of expectation about style has ramifications beyond a woman's work in the courtroom. Male litigators sometimes complain that their post-trial relationships with female adversaries are less amiable than those with other men. Although this is undoubtedly true in some cases, men's criteria for "friendliness" from women are based on stereo typed notions of how women should behave in social/romantic relationships rather than on professional norms. Thus, the woman adversary who is matter-of-fact rather than admiring after a trial is put down as having a chip on her shoulder.

Another aspect of the style problem is that men sometimes give even highly successful women lawyers criticism and negative performance evaluation because the women use different styles, skills, and strategies. We have not yet reached the point at which women are judged by how effective they are rather than whether their approaches to work are similar to those of men.

Women Lawyers in Court

Some judges, lawyers, and court personnel have difficulty in accepting women as professionals. This is reflected in their behavior toward women lawyers and judicial clerks that includes overly familiar forms of address ("Susie" or "young lady" instead of "Ms." or "Counselor"), comments on personal appearance that are sometimes well-meant but often made at inappropriate times (how does a lawyer establish her credibility with the jury when the judge's compliment has just defined her as a fashion plate?), remarks that demean women and sexist "jokes," and verbal and sometimes physical advances. Studies in several states throughout the 1980s showed that these behaviors occur with frequency and that male attorneys engage in them even more than judges and court personnel.

When women attorneys object to these behaviors, their objections are trivialized or they are accused of crying "foul" over a fair litigation tactic. But these behaviors are more than personally insulting. They undermine the credibility of the attorney as a professional and, by extension, that of her client. They force the attorney to think about whether a response advances her client's case rather than think about the case itself.

And as to litigation tactics, we do not permit race-baiting in the courts, so why do we permit this? In 1980, the National Judicial Education Program to Promote Equality for Women and Men in the Courts began to present seminars at judges' and lawyers' continuing education programs to make them aware of how gender bias affects decision making and the courtroom interaction. These educational programs led to a series of task forces, which were established by the chief justices of approximately thirty-four states, the District of Columbia, and two federal circuits. These task forces were mandated to investigate the nature and extent of gender bias in their own systems and recommend ways to eliminate it. Although there is evidence that gender bias in court interaction is abating as a consequence of this kind of investigation and education, this is another of the barriers still facing women in the profession about which it is important to be forewarned.

A final point relating to women in the courts is women's unequal access to important fee-generating appointments. In many states, judges appoint lawyers to control property or represent clients in a wide variety of civil and criminal cases. Women lawyers across the country report that few judges appoint women to receiverships, condemnations, and other kinds of business cases that pay well. In criminal cases, women are appointed to represent women accused of misdemeanors, while men are appointed to represent men in the kinds of felony cases that give a lawyer important experience and community visibility.

Rainmaking

"Rainmaking," more politely termed "client development," means bringing in business. Always an element in consideration for law firm partnership, rainmaking has grown in importance in recent years as law firm economics have forced firms into open competition for clients. Rainmaking has long been more difficult for women than men for several reasons. Men's college and law school roommates and luncheon and golf club friends are themselves in various businesses and professions and have legal business to give out. Women could not, and in many places still cannot, join the luncheon and golf clubs where men have long made and maintained their business contacts.

Men with reason to hire attorneys are often uncomfortable hiring a woman unless they know her well or she has an essential expertise. The threshold problem, which may take years to overcome, is that some segments of our society still assume that a man is competent until proven otherwise, and a woman is less than competent until proven otherwise.

This presents a catch-22 for the woman lawyer who would be a rainmaker. She cannot establish business contacts because she is presumed incompetent, and she cannot prove herself competent until she gets the business. This barrier should diminish as more women open businesses and become general counsels and are in a position to place business with women friends.

If you aspire to law firm partnership, take every opportunity to learn about rainmaking (bar associations, for example, often offer seminars on client development, and the ABA Law Practice Management Section has established a Woman Rainmakers Network), because it is an area on which you will be judged. Although law firms are generally convinced of the ability of their women lawyers to do the work, they are wary of women's ability to bring in the work.

Conclusion

Despite their small number, women lawyers have already made a unique and significant contribution to the profession. The barriers to women's full integration into the profession described in this article will diminish as the number of women lawyers and judges increases, but numbers are not enough, and women cannot do it alone. Only when lawyers of both sexes throughout the profession understand what these barriers are, how they affect the professional and personal lives of women and men, and how they are reflected in inadequate client representation and gender-biased judging can the profession begin to grapple meaningfully with these problems. Only a conscious, consistent, and ongoing effort that begins in law schools and is carried through in every aspect of the profession can eliminate them.