Official Magazine of the Denver Bar Association

“Opting Out”: Truly an Option or a Result of Insufficient Support? ~ By CWBA President Jessica Brown

It is well known and frequently noted that women tend to “opt out” of the legal profession. Often times, the women opting to leave the profession temporarily or permanently are mothers; raising children can be richly rewarding in itself. Furthermore, this is a demanding profession, and many of us find it challenging, sometimes impossibly so, to make it work while raising a family.

But family is not the only, or even the primary, reason women exit the profession at higher rates than men. A 2005 study by the Center for Work-Life Policy reported that 42 percent of women lawyers leave for a period of time, even more than the 37 percent of women who leave other professions. The top two reasons women lawyers cited for leaving were “lack of career satisfaction” and “feeling stalled in their careers.” When women (and men) feel underutilized and under-appreciated in their jobs, they are, unsurprisingly, more likely to leave.

In addition, not all women leave entirely by choice. A 2006 study by the Center for Worklife Law at Hastings College concluded that most women who left the practice did so because they felt forced out by inflexible workplace practices and biases against women, particularly working mothers.

Those biases are rarely explicit. In a 2014 edition of the CWBA newsletter The Advocate, John Baker, director of the Colorado Attorney Mentoring Program and a promoter of women and the CWBA, recounted an example of implicit bias from his own experience. John spent 33 years as a trial attorney, and his law firm never succeeded in having a female partner. He recruited two outstanding female associates, but each left the firm after about five years. One left the practice of law entirely; the other left to work in government.

At a CWBA event three decades later, John asked the woman who had left for the government (and who subsequently became a judge) why she had resigned. She reminded John that occasionally, she and two male partners from the Boulder office would come to the Denver office for meetings. The male partners would go out for a “boys lunch” and never asked her to join. She said that practice made her feel isolated and unwelcome.

John almost immediately recognized this unintentional implicit bias as an affinity bias: “a preference for someone or a comfort with a particular kind of person.” Affinity and other implicit biases can result in micro-inequities — and greater inequities — that contribute to the decisions of many women to leave the profession.

The statistics are often cited: Women have graduated from law schools in nearly equal numbers to men for more than 20 years, yet women still only comprise 16-20 percent of law firm equity partners. The percentages are similar in the General Counsel ranks, high-level government jobs and so on. The fact that women are exiting the profession in greater numbers than men is clearly a contributing factor. Women cannot ascend to leadership positions if they are not practicing when partnership and other promotional decisions are made.

What can our legal community do to help keep women in the profession — the ones who want to stay or who would stay if they felt sufficiently supported? There are no easy answers, but it is within the CWBA’s mission to help address this question.

First, as American Bar Association President Paulette Brown recently emphasized to our community at her CLI-sponsored program on implicit bias, we can keep discussing these issues. Some people have expressed that they are tired of talking or hearing about diversity and inclusion, about topics like explicit and implicit bias. But until we close the leadership gap, these subjects must remain part of our conversation.

Related to this point, we can continue to offer, attend and support programs like those that the CWBA regularly hosts. For example, last year, the CWBA partnered with the University of Colorado’s Dean Phil Weiser, another instrumental supporter of women and the CWBA, to host “Moneyball for Lawyers.” With a panel of general counsel and senior law firm lawyers, we examined alternative metrics that employers might use in lieu of traditional criteria, such as billings and billable hours, to evaluate attorneys. This, in turn, could lead to higher promotion rates of diverse attorneys.

On April 6, the CWBA and CU will be partnering again to discuss the so-called “confidence gap” between men and women and the critical importance to legal employers of ensuring that opportunities are afforded based on the ability to perform effectively, not on individuals’ willingness to self-promote or put themselves out there more aggressively.

The CWBA has offered a number of programs in recent months on how to secure a position on the bench, make a transition from one type of legal career to another (e.g., private practice to in-house and government to private practice), and maintain health and wellness under stress. We hosted a sixth annual “moms luncheon” so women juggling career and family could share ideas for making it work and laughing about it when it doesn’t.

These CWBA programs and others share a common goal of supporting women and helping them advance in their careers, if that is their desire. Not all of these programs have qualified for continuing legal education credit, so another thing we can do as a legal community to help address these issues and potentially keep women and other diverse lawyers from exiting the profession is to permit CLE credit consistently for programs relating to diversity and inclusion.

But talking is not enough: We need action as well. We can encourage women to strive or apply for promotions and prominent positions. The CWBA recently embarked on a campaign to encourage its members to apply for vacancies on judicial nominating commissions across the state. The response was tremendous. Support and encouragement go a long way. We can also nominate qualified women for awards and advocate for them in meetings and other contexts.

We can encourage law firms to invest in their women lawyers to ensure that they are properly supported and mentored. The Colorado General Counsel Group Advisor Program, led by Liberty Media General Counsel Rich Baer, yet another champion of women and diverse attorneys, could serve as a model. This program seeks to promote diversity in law firm leadership by providing qualified individuals with the opportunity to receive business development mentoring and guidance from a group of prominent in-house lawyers. Employers should be identifying deserving women for opportunities like this, both formal and informal, at all stages of their careers.

And we can encourage all employers to permit greater flexibility in the workplace, as well as work to reduce the stigma associated with taking advantage of flexibility. This is a topic for another entire article and will be explored at a CWBA program in March relating to flexible and balanced hours programs.

These are just a few things we can do to encourage women to stay in law — if they want to. There is nothing wrong with “opting out” — as long as it truly is a choice. D

JBrown-press (3)Jessica Brown can be reached at jbrown@gibsondunn.com.

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