In 1864, British sociologist Herbert Spencer read Charles Darwin’s On the Origin of Species and drew parallels between his own theories and Darwin’s. In Principles of Biology, Spencer stated that “[t]his survival of the fittest, which I have here sought to express in mechanical terms, is that which Mr. Darwin has called ‘natural selection.’” Darwin later used Spencer’s new phrase “survival of the fittest” in his fifth edition of On the Origin of Species as a metaphor for “better adapted for the immediate, local environment.”

Significant work/life balance trends are evolving that will affect both lawyers and law firms. Firms that are not better adapted to their new immediate, local environment may find their survival threatened by declining revenues and profits per partner. Women lawyers leave law firms at a rate almost double that of lawyers who are men, at an estimated average cost to law firms in all cases of two times the lawyer’s salary.¹ Law firms that fail to provide better working environments will continue to lose both cash and talented lawyers. An increasing number of women in influential business-management positions are deciding which lawyers and law firms will do their companies’ legal work. Law firms that lack women partners risk losing business from these clients. Within law firms, women lawyers who do become top economic producers will also have much more influence on policy decisions, perhaps even to the detriment of entrenched male colleagues. New strategies are needed to keep pace with these evolutionary changes.

Diversity as a Growth Strategy

The United States, and thus the universe of potential clients, is becoming increasingly ethnically and racially diverse. In 1980, only 20 percent of people living in the United States were “nonwhite.” By 2010, that percentage had increased to 33 percent, and it is estimated that by 2040, more than 50 percent of the population will be made up of people from racial and ethnic backgrounds currently considered to be “minorities.”² Ten times more women than men are starting their own businesses. A steadily growing number of both general counsels and senior executives are women. A study by the Catalyst organization examined 353 Fortune 500 companies and found that “the group of companies with the highest representation of women on their top management teams experienced better financial performance than the group of companies with the lowest women’s representation.”³

Client development is based on relationships. We build these relationships with people we get to know, like, and trust. For these reasons, male business owners and executives usually refer business to male lawyers. The increase in women decision makers among potential clients means law firms will need to respond with women partners to be competitive because the same gender dynamic is likely to occur. In addition, professional women’s groups are now focused on client development skills as the most effective method to get ahead. The word has gone out to women who buy legal services that they need to help the cause by allocating work to women lawyers and “woman-friendly” law firms. Initiatives by corporations that give preference to law firms that staff matters with women and minority lawyers are just one example of these trends.

Law firms should consider women attorneys when planning for the succession of primary responsibility for client relationships. They can also make sure women participate equally in client pitches, client presentations, and client activities. Firms’ marketing programs should expand client-development venues to environments that reach beyond the traditional professional-sports events, golf outings, and hunting or fishing trips.

Women partners and associates should take the initiative to express their desire to participate, seek out specific market opportunities, and ask for resources to support their efforts. An associate at a large firm in Madison explained that attorneys need to understand the economics driving their firms and to define and communicate their personal expectations. A woman partner at a smaller firm echoed these same views, especially the need to understand that compensation will be tied directly to production. Flexible work schedules and accommodation of lawyers’ needs are worthy goals, but client service is paramount and often requires a significant commitment of personal time.

Hidden Bias

As law firms evolve to become more competitive in the modern marketplace, one of their challenges will be recognizing and overcoming hidden bias. We all have hidden biases about particular groups, places, and things. Hidden bias comes from our everyday sense of “the way things are,” which influences our everyday workplace interactions. Bias affects what we notice about people, how we interpret their behavior, and what we remember about them. Gender bias is comprised of our assumptions about the characteristics of men and women. For example, a woman associate who uses a flexible schedule to accommodate child care needs may create negative assumptions among male colleagues about personal productivity, regardless of her actual performance.

As one successful woman partner at a large Chicago law firm observed, everyone starts out their first year of practice the same, but after five to seven years and around the senior associate level, women may start having children, which may jeopardize their consideration for partnership. Even if they make partner, work/life balance issues continue to present challenges so long as the traditional expectations and evaluating processes remain.

Hidden bias may also cause male partners to react negatively to even the suggestion that firms allocate resources to pursue “the emerging diversity market.” Carol Greider, who won the 2009 Nobel Prize in Medicine, summarizes that “[w]omen need to help other women, because most men still help other men. This is not driven by conscious discrimination; modern men don’t say, even to themselves, ‘I only want to work with men.’ It’s not that they are biased against women or want to hurt them. They just don’t think of them.”⁴

The Road to Partner Remains Under Construction

The percentage of women lawyers who are equity partners in large law firms is only about 15 percent, a statistic that has been about the same for the last five years.⁵ However, during that same period there has been a measurable increase in the availability of programs and policies expected to positively affect the advancement of women. Almost all firms have a maternity leave policy, a part-time work policy, and a diversity initiative. In many cases, these were put in place specifically to
enhance the retention and advancement of women lawyers as well as other traditionally underrepresented groups. So, why do women continue to be underrepresented in law firm leadership positions? What else can law firms do to actually enhance the ability of women to advance?

In addition to recognizing and addressing hidden biases and providing enhanced client development opportunities, many law firms may need to make structural and governance changes. Herminia Iberra, coauthor of the 2010 Gender Gap report from the World Economic Forum, observed that many evaluating systems and structures were designed a long time ago by men and for men. “We are going to have to start figuring out how to make our organizations more flexible, more modern, more innovative so that they actually work for today’s workforce. The issue is that women tend to have their children when organizations are making their decisions about who has potential to move into the highest levels. For highly educated women, that age is increasing from mid-thirties to early-forties, which is precisely when organizations are making their bets about who has got potential. How do we design our pathways to success such that showing one’s commitment to an organization and showing commitment to one’s career, isn’t dependent on one’s ability to work 24/7 at age 35?”⁶

When a woman lawyer at a large Milwaukee firm had her first child as an associate, she needed to demonstrate she could maintain the required level of productivity, finish all assigned projects as needed, and be on call even when not physically present in the office. When she became a partner and had her second child, the requirements changed but she was still required to demonstrate that she could manage her client demands, delegate work assignments, and maintain her revenue generation. Eventually she left private practice for a general counsel position with a major company, where her success is measured by her own work product. She no longer worries about being judged by her male colleagues, and she works at home one day a week so as to have more time with her children.

Cultural Competence

Law firms will also need to develop a high level of cultural competence. Many firms want to build an inclusive and diverse work environment, but they still place a high value on “sameness.” Both consciously and subconsciously, this preference for sameness is communicated throughout the firm. Cultural competence requires behaviors, attitudes, policies, and structures that encourage working cross-culturally. Law firm leaders must appreciate, manage, and leverage the dynamics of difference and institutionalize cultural competence. Successful law firms will adapt to the diverse cultural contexts of their employees, their clients, and the markets and communities they represent. Without the necessary foundation of cultural competence, efforts to increase diversity are likely to be unsuccessful.

As an example, Haynes & Boone in Dallas is often touted as a premiere “women-friendly” firm. One reason is that approximately 25 percent of the firm’s partners are female. According to the firm, its compensation structure rewards entrepreneurship, and that value has been key to attracting successful lawyers. Successful women lawyers are not expecting special treatment or accommodation. They simply want a level playing field. They welcome the opportunity to compete as equals. According to research, “contrary to conventional wisdom asserting that women are often ambivalent about power, 80% indicated that they were comfortable with power, respected it, and liked what they could accomplish with it[,] 65% said that they saw power as important to effective leadership, and 70% wanted power in order to change their organizations.”⁷ Women lawyers welcome the opportunity to lead practice teams and attain firm management positions as a method to use leadership roles to effect positive results.

Effective Mentor Programs

Mentoring has always played a prominent role in the legal profession. For lawyers, mentors do more than simply pass on knowledge and information. They pass on the true art and science of the practice of law. They help other lawyers acquire vital knowledge and skills more quickly and effectively. Individualized mentoring and support can therefore be crucial to any lawyer’s professional development. Law firms need to encourage more women mentors to be willing and able to promote other women. Women partners need to be sure newer lawyers have opportunities to be authors, presenters, and attendees at important functions to increase visibility.

One successful partner at a Chicago firm gives credit to another woman partner who took a particular interest in mentoring her early in her career. The mentor made sure the younger lawyer was involved on important cases and trained in the techniques required to be successful in her specific practice area. The mentor passed on the belief that women in leadership positions have a responsibility to reach back and guide women in junior positions. Women lawyers who serve as mentors need to share successful business-development strategies and encourage the lawyers they are mentoring to ask for such opportunities.

Build Your Own Safety Net

Developing a diversity marketing option at any law firm has its challenges. Firm leaders and women leaders will need to work together to make this a reality. In addition to understanding hidden biases and cultural competence, other actions are required. For example, when women lawyers approach firm managers with suggestions for positive change, the spokespersons should include equity women partners, income women partners, women associates, and nonlawyer women members of the management team. The goal is to speak collectively and maximize leverage while guarding against typecasting, mischaracterizations, or “special-interest” labeling.

When growing their business books, individual women lawyers need to develop their own contacts and not just rely on the contacts of male colleagues. While it is important to select the best attorney for the matter, there are many highly qualified and competent women lawyers who would benefit from a referral. There is a reason that men lawyers refer business to their male counterparts. It is a two-way street, and the work flows back and forth. By developing an effective network of women lawyers, the same flow is created with mutual benefits to all women who participate. Whenever a woman lawyer is writing an article or serving on a panel, she should consider whether there are advantages to coauthoring or copresenting. If there are, she should consider asking a woman colleague, woman client, woman referral source, or woman contact. By supporting them, she will advance the whole collectively. When given an opportunity to refer business to a nonlawyer, consider a business owned by a woman. Many women in other industries face similar challenges to women in the law. The woman accountant, woman banker, and woman entrepreneur will all appreciate these efforts.

Change is Our Only Constant

Demographic trends in the United States clearly illustrate that work/life balance issues and the need to embrace diversity are crucial objectives that may affect any law firm’s bottom line. Nonetheless, because lawyers are trained in the value of precedent, they might underestimate the impact of trends. So long as our traditional systems still appear to be working, and especially in the absence of a proven alternative, change often is uncomfortable and usually is resisted. However, economics as well as demographics have now thrust upon us this brave new world of diversity and inclusion. As futurist Alvin Toffler observed:

“Change is the process by which the future invades our lives. The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.”

Endnotes

¹ MIT Workplace Center 2007, “Women Lawyers and Obstacles to Leadership.”

² U.S. Census Bureau, Current Population Survey, Educational Attainment in the United States: 2005.

³ Catalyst, The Bottom Line: Connecting Corporate Performance and Gender Diversity (2004).

⁴ Susan Estrich, “Nobel Winner Takes Big Step For Women,” New Haven Register, October 2009.

⁵ National Association of Women Lawyers (NAWL) & The NAWL Foundation, “Report of the Fourth Annual National Survey on Retention and Promotion of Women in Law Firms” (October 2009).

⁶ From an interview for INSEAD Knowledge by Zoe McKay, Dec. 13, 2010. Herminia Ibarra is the Cora Chaired Professor of Leadership and Learning, and faculty director of the INSEAD Leadership Initiative. INSEAD is one of the world’s leading and largest graduate business schools, with campuses in the United States, France, Singapore, and Abu Dhabi and a research center in Israel.

⁷ Simmons School of Management and Hewlett Packard (2003-2004).