The Chief Justice recently gave an interesting Sir John Graham Lecture at the Maxim Institute. The whole address is available here and it was followed by a Q&A session available here – she is an excellent speaker and she traversed a wide range of material such as access to justice, open courts, the fragility of our constitution – so it is well worth a look. What I want to consider here is an answer she gave to the question about how to correct the gender balance in senior roles in the profession (21:35 of the Q&A).

After saying it was an issue that “bothers me a great deal”, she suggested the profession needed to look at itself and also suggested that there might be a broader social issue where the clients are playing a role as well. Both of these are good points and are supported by the research (I’m a particular fan of both Margaret Thornton’s and Hilary Sommerlad’s work on these issues). She then went on to say something that gave me pause:

I personally think it is time for women to get really angry. I think women in the legal profession should really look at the place where they are working. If they feel they are not sufficiently valued if they are not getting a fair crack, I think they should leave. There is great work to be done out there. There may be lower incomes but actually I think people are trapped by the unrealistic incomes in legal practice today and I think a lot of young people are on treadmills where the work they are doing is quite un-worthwhile. When I started off in legal practice … we did some cases which were amazing. There are people out there who need to help, there are really good careers out there to be made. I think, if women aren’t enjoying the lives out there in the profession they should regroup and do it themselves.

It was of course an answer to a Q&A, not a carefully scripted answer. I do think it contains some interesting ideas worth unpacking further

1. Women should leave if they do not feel valued or are not getting a fair crack

Problematic. The figures suggest this is exactly what women are doing and why it is that they are not rising to partnership. That they are leaving is really the problem, not the solution.

2. There is interesting work outside big firm life and a lot of unmet legal need

Absolutely. I spend quite a lot of time on my soap box talking about both these things. Too many lawyers are socialised to believe that the most interesting, important or complex work lies in the big firms, equating interesting work with client wealth. So here, here to this idea.

3. Women lawyers staying in firms are doing so because they are “trapped by the unrealistic incomes in legal practice today”

Well, maybe. We don’t know how much partners earn[1] but we know that some of them are earning a lot and it may well be junior lawyers are staying on in firms to chase down the spoils of partnership. According to the Ministry of Business, Innovation and Employment in 2016 the average income for a lawyer was $105,600. That is quite high compared to other industries but MBIE notes that this figure is “skewed by very high incomes at the top of the industry” (in other words, the very top have very high incomes, which is dragging up the average. Early career lawyers are not, however, near this average: three years after qualification the median salary is $57,000.

4. Women lawyers who are unhappy should quit and meet legal need/do the interesting work and make their own careers

This suggestion runs into several really big impediments, particularly for early career women:

• Debt – unlike the days when the Chief Justice began her career, many students are graduating with significant debt. I clearly remember the first two years of my practising life where I was being paid $28,000 p.a. and I would wake up in a cold sweat at 3am wondering if I would be able to meet the rent payment that week, let alone pay off my $40,000+ student loan. At that point in my life, I could not imagine a future where that debt could be paid off and meeting bills would not keep me awake at night. Some early career lawyers have other responsibilities like dependents as well. It is a big thing to quit a job in those circumstances.
• Risk – leaving a job to set up on your own account or in some other new form of practice arrangement involves significant risk. Are you going to be able to attract clients? Will it work? The risk is not just that your income will drop below what partnership might offer, but that your income won’t cover your living expenses. If you have debt and/or dependents the risk is magnified considerably.
• Skill – until you have practice experience it might not be a very good idea to up sticks and work in a less structured environment than a firm. It is called legal practice for a reason. One of the big attractions of working for a firm is ongoing training and the opportunity to learn from senior people.

Mid-career women have solved the skill problem but they may have significant issues with debt and risk as they move through their careers.

Who should change the world?

Interestingly, the Chief Justice closed out her remarks on this question by saying:

We haven’t learnt the lessons of the suffragettes … our aim of getting into law wasn’t so affluent women could get a bigger share of the spoils … It is time for women to be ambitious enough to want to change the world they are in.

It was a rousing call, met by applause by the audience. But her reference to affluence really made me think. She is right that women did not join the profession just so affluent women could take a share of the partnership spoils. But it might be the affluent women who now need to take the lead to create change. The senior, affluent, women lawyers have skill to cut and run and they can do so with much less economic and social risk than more junior and/or less affluent women. If we put the onus on those who not only feel trapped, but may actually be trapped, little will change. The rest of us need to cut the new paths through the scrub so that others can follow. The Chief Justice retires from in a few months, a perfect opportunity for the most senior of all women lawyers to be in the vanguard.

[1] The survey that the NZLS undertakes every two years (and is undertaking currently) only surveys “employed lawyers” i.e. not partners.