Erin E. Tomlin

Published March/ April 2022

Leadership, lawyering, and livelihood. These three categories are not always related and what is good for one is not always good for the other. However, in private practice they must work in tandem for successful professional, ethical, and business outcomes. All three categories become more robust by supporting, empowering, and retaining female attorneys in law firms.

While good lawyering may affect positive livelihood outcomes, the real challenge for many private practitioners is managing the business side of a law office or firm.  The legal profession should be responsive to business industry metrics and regional economic growth patterns. With this kind of pulse on business dynamics, lawyers owning or managing a law firm are primed to demonstrate transformational leadership and respond to industry dynamics in a way that sets the bar higher with each leadership decision.

Walking through the halls at the University of Idaho College of Law in Moscow reminds us how certain demographics change over time. Once featuring predominantly male graduating classes through a black and white lens, more current class photo montages are a vivid reminder of the progress to date as more diverse students and faculty reflect changing demographics.  National figures indicate that female attendance at accredited law schools is consistently increasing. ¹ More females are attending law school than ever before – in some states, female students now outnumber male students.²

Law firms prioritizing retention of female attorneys and partners³ makes business sense and promotes growth.  Why are female attorneys, in general, paid less and promoted less if there are more of them coming into the profession than ever before?⁴ Even more alarming, why are female attorneys leaving their jobs (or the legal profession altogether) disproportionate to male attorneys? ⁵ The legal profession, as an industry, must evaluate why more than half of incoming attorneys, i.e., those who identify as female, experience disproportionate pay and are retained less. The disconnect between increasing incoming attorneys and the decreasing retention and promotion of those attorneys is an industry problem indicative of potential challenges beyond inefficient business models.

How can private practice business owners improve attrition rates for female attorneys, both associates and partners alike? Doing so helps firms stand out as leaders at a time of unprecedented growth in Idaho. ⁶ Work life balance is often touted as a primary way to increase career satisfaction and retention, but the suggestions below may prompt firms to implement changes specific to the legal profession industry retention metrics available to us.  

By taking some or all the following action steps, law firms become more competitive and valuable in a dynamic economic climate.⁷

Hiring and promotion practices

In 2015, the National Association of Women Lawyers announced its One-Third by 2020 Challenge, “calling for an increase in the representation of women across five different areas of the law.”  ⁸ Obstacles for female attorneys in the legal profession won’t stop here but we can’t change attrition rates if female attorneys aren’t hired in the first place. Legal industry leaders and decision-makers must promote female attorneys, hire female law student interns/externs, and create pathways to promotion for female attorneys where one may have not existed before or improve upon existing pathways, and be intentional and follow-through.  Firms with diverse attorneys are better able to meet dynamic clients’ needs in a changing socio-economic landscape.

Listen to female colleagues

Create environments and resources that facilitate comfortable communication about uncomfortable topics.

Listen to your colleague when she shares an experience that you, as the listener, may not have a frame of reference for because you have not experienced what it’s like to be a female attorney in the legal profession. Acknowledge the foundational power-dynamic of the discussion in and of itself while listening to the substantive conversation at hand. These are opportunities to move beyond dutiful HR -isms to a place of self-awareness, change, and advocacy.  Are we glossing over someone’s experience because we can’t hear or see them outside of our worldview or experiences?

Finally, listen to respond, not react. Attorneys like to offer solutions and tend to think they have them. Good listening requires a pause or reflection before a reaction. Such pause could be vital when having a conversation about someone else’s experience and how it could be better. Knee-jerk reactions or explanations can come across as disingenuous, defensive, or placating to someone looking for earnest leadership. Good communication starts with the humility to listen differently.  

Internal fine print: Create intentional and inclusive firm policies

By creating firm infrastructure that supports an employee’s holistic health, firms are taking a critical look at how people multi-task and handle stress, both at work and outside of work. Employers who understand the impact of external stresses on business outcomes are employers demonstrating leadership as well. Part of creating impactive policies is a willingness to notice change in trends or work/life dynamics and help transform lives because it does make for happier and more productive employees and partners.

Other helpful policies include formal succession plans and firm mission statements. Formal succession plans can ensure that female associates and partners are included in the transfer of valuable clients and important client relationships.

Yes, virtue-signaling can live comfortably in touted firm infrastructure but handbooks and policy manuals make it a lot harder to signal without action and follow-through. They provide a framework for accountability. When written policy and processes reflect good intentions, those intentions are more likely to become actions. 

Support sponsorship and mentorship programs

Firms that support attorneys, associates, partners, and staff create a sought-after workplace for those entering the profession. When firms pay for membership to professional organizations that offer professional camaraderie and support, they are building a community for a valued employee or partner. If you have employees or partners who would benefit from mentorship and community resources specific to their experiences, facilitate that and make sure it’s an intentional practice and procedure for the firm.  

Transformational leadership: Making individuals part of a true team

The articulated concept of ‘transformational leadership’ was introduced to the world in a Pulitzer Prize-winning and seminal study on leadership by its author and researcher James Burns approximately fifty years ago. ⁹ Transformational, rather than transactional leadership, focuses on relationships and working together for the common benefit of a collective goal or group. Use of transformational leadership creates situations in which “leaders and followers raise one another to higher levels of motivation and morality”.¹⁰

Transformational leadership is, arguably, good for business yet lawyering often focuses on individual performance, i.e., billing. Transformational leadership requires business owners to think beyond basic lawyering billing metrics and assess how they want to build a team for success. It is often best implemented or explained in an office environment by encouraging leaders to set an example of aspirational values or behaviors. This requires owners and partners to speak up and be intentional in setting examples and taking initiatives.

If firm owners and partners are merely focused on individual transactions when reviewing broader firm productivity, the value of an individual will always be emphasized over the value of the group. While this might not be problematic in terms of churning out billable hours, it is short sighted in an industry poised to grow in unprecedented ways. Leadership understands that individuals perform better when their value is measured in more than one way and transformational leadership creates reciprocity between colleagues and empowers firm growth and retention.

Look your metrics in the mirror

Equal pay conversations should have more depth than who is getting paid less or more than someone else.  Some helpful ways to identify the equality of the pay versus the output of the attorney is to ask the following: Is there an expectation the attorney will bill the same as other attorneys but has different, i.e., less, resources to do it? Is an attorney with a part-time support staff expected to bill the same as an attorney with full-time staff support? Does the attorney have access to the same kind of billing opportunities that other attorneys do, i.e., similarly paying clients and kinds of cases? Did all attorneys benefit from a succession plan or transfer of pre-existing clients and are equally able to bill more? Or was it more selective? Are attorneys limited in what kinds of cases they can take?

If the metrics don’t add up because attorneys aren’t equipped with similar or equal resources to succeed, then the metrics perpetuate inequality. If ill-equipped attorneys or partners also happen to be females outnumbered by males who do have more resources or access to more lucrative case opportunities, well, that’s not only not a good look but it’s likely indicative of a problem that runs deeper than optics.

In addition to creating equal opportunities for attorneys to bill equal amounts, firms must include female attorneys in leadership. From firm administration to managerial tasks, these duties should be shared.   

Implicit bias training

Whether it’s formal training to identify implicit biases or other trainings, being willing to learn and critically assess individual biases and limitations is a hallmark of effective leadership. Many industries already require implicit bias training. The legal profession, as an industry, relies on good credibility for livelihood. If attorneys lose their credibility because they cannot identify implicit biases, they shortchange their ability to improve in an industry that is characterized by its requirement for ‘life-long learning’.

Don’t treat a partner like an employee

A recent effort by The Pay Equity Taskforce of the National Association of Women Lawyers (NAWL) has examined an alarming phenomenon; partners who are that in name only. ¹¹ In addition to tax liabilities inherent in treating partners like employees, other concerns arise when analyzing gender disparities in the legal profession. In this study, NAWL highlights case law throughout the nation that analyzes and interprets the Equal Pay Act, Title VII, and other related employment discrimination statutes. As mentioned elsewhere in this article, compensation metrics should be increasingly scrutinized as that might be the best hiding place for gender discrimination.  However, it’s not that great of a hiding spot as:

Courts are also being asked to examine the law firm compensation model itself to detect if there is any inherent gender bias in profit allocations. For example, in Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 3:18-cv-00303 (N.D. Cal. filed Jan. 12, 2018), a woman partner alleges that the firm’s lack of female representation in leadership has led to pervasive gender discrimination. In particular, she has drawn attention to the firm’s practice of allocating compensation credit based on “originating credits, managing credits, responsible credits, working credits, and billable hours.” Id. The plaintiff is asserting that while originating and managing credits are the primary metrics used to determine compensation, women partners are not given proportionate opportunities to develop the business that would generate such credits. Furthermore, the plaintiff contends that women partners are assigned tasks that are not highly valued and that do not lead to business origination and matter managing credit. ¹²

Bring in a professional.

Many firms pay accountants, web site designers, tech support, or public relations/marketing professionals to provide necessary and helpful services for law firm business operations. Why not recognize the benefit of improving attrition rates and reducing the likelihood an office or firm is running afoul of equal employment claims by bringing in a consultant? A consultant is meant to collaborate with businesses and identify processes and inefficiencies for improvement. If gender bias pitfalls and discrepancies are affecting a firm’s culture and climate, an external professional may be able to offer helpful suggestions and, in the same turn, help improve a firm’s marketability and accessibility amid a changing socio-economic environment.

If firms and lawyer business owners are willing to implement or take heed of these practical suggestions, they can raise the bar higher and meet industry demands in a competitive way.  Changes such as the ones suggested here are good for business and meet progress at the next cornerstone of dynamic commerce and professional morality.

Erin E. Tomlin graduated from the University of Idaho College of Law in 2012. She is licensed in Idaho and Washington. She has spent her legal career working in both the public and private sector, in nearly equal amounts of time in each. She is Associate General Counsel for the University of Idaho and views expressed here are her own. She is on the board of directors for the Moscow Chamber of Commerce and Visitor’s Center and Habitat for Humanity of the Palouse. She lives in Moscow with her family and they love to raft and hike and sit by a good campfire together.

Endnotes

1. “Enjuris.” ABA for Law Students, February 28, 2019. https://abaforlawstudents.com/author/enjuris/.

2. Id.

3. Reference to the word ‘partner’ is broadly used and meant to include all other business entity ownership interests, i.e., member, shareholder, for the sake of simplicity but in no way means to equate various business interests or confuse the reader.  

4. Sterling, Joyce, and Linda Chanow. “In Their Own Words: Experienced Women Explain Why They Are Leaving Their Firms and the Profession.” Americanbar.org, May 3, 2021.

5. Id.

6. Bureau, U.S. Census. “Idaho Was the Second-Fastest Growing State Last Decade.” Census.gov, October 8, 2021. https://www.census.gov/library/stories/state-by-state/idaho-population-change-between-census-decade.html.

7. Id.

8. “NAWL One-Third By 2020: The NAWL Challenge.” NAWL. National Association of Women Lawyers, March 15, 2016. https://www.nawl.org/page/the-nawl-challenge.  

9. Burns, James Macgregor. Leadership. New York: Harper Perennial, 2010.

10. Id at 20.

11. “NAWL Pay Equity Taskforce Series: In Name Only, Are Some Law Firm Partners Actually Employees?” Women Lawyers Journal 103, no. 2 (2018): 13–15.

12. Id at 15.