Undermining Gender Equality: Female Attrition from Private Law Practice

• Date: 01 September 2016
• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/lasr.12214

Undermining Gender Equality: Female Attrition

from Private Law Practice

Fiona M. Kay

Stacey L. Alarie

Jones K. Adjei

The number of women in the legal profession has grown tremendously over

the last 40 years, with women now representing about half of all law school

graduates. Despite the decades-long pipeline of women into the profession,

women’s representation among law firm partnerships remains dismally low.

One key reason identified for women’s minority presence among law firm

partners is the high level of attrition of women associates from law firms. This

high rate of female attrition undermines efforts to achieve gender equality in

the legal profession. Using a survey of 1,270 law graduates, we employ piece-

wise constant exponential hazard regression models to explore gendered

career paths from private law practice. Our analysis reveals that, for both men

and women, the time leading up to partnership decisions sees many lawyers

exit private practice, but women continue to leave private practice long after

partnership decisions are made. Gender differences in leaving private practice

also surface with reference to cohorts, areas of law, billable hours, firm sizes,

and career gaps. Notably, working in criminal law augmented women’s risk of

leaving private practice, but not for men, while taking time away from practice

for reasons other than parental leaves, hastens both men’s and women’s exits

from private practice.

Since the early 2000s women have been graduating from U.S.

and Canadian law schools at about the same rates as do men

(Belkin 2003; Kay & Gorman 2008; Noonan & Corcoran 2004).

Recent data show women’s representation in the legal profession

continues to grow. In the United States, in 2005, women made

up 30 percent of lawyers and in 2012 women represented

This study was funded by a research grant from the Social Sciences and Humanities

Research Council of Canada (SSHRC) and with the cooperation of the Law Society of

Upper Canada. An earlier version of this paper was presented at the 2014 Annual Meeting

of the Law & Society Association in Minneapolis, Minnesota. The authors would like to

thank the Law & Society Review editors, the anonymous reviewers, and Carole Silver for

careful and insightful feedback on this research. The opinions contained in this paper are

those of the authors and do not necessarily reflect the position or policy of the Law Society

of Upper Canada.

Please direct all correspondence to Fiona Kay, Department of Sociology,Queen’s Uni-

versity, 99 University Avenue, D-431 Mackintosh-Corry Hall, Kingston, ON, Canada K7L

3N6; e-mail: kayf@queensu.ca.

Law & Society Review, Volume 50, Number 3 (2016)

V

C2016 Law and Society Association. All rights reserved.

766

47 percent of law students (American Bar Association 2012). In

Canada, in 2013 women made up 38 percent of lawyers (Federation

of Law Societies of Canada 2014) and in 2012 in the province of

Ontario women represented 49 percent of new bar admissions

(Law Society of Upper Canada 2013). As Belkin remarked,

women “start strong out of the gate” (2003: 44). Yet, despite dec-

ades of women law school graduates, there continues to be a dis-

proportionately low number of women advancing to leadership

positions in law firms (Pinnington & Sandberg 2013). Parity

remains a distance off, with the typical large law firm counting

less than 20 percent of its equity partners as women (Scharf et al.

2014: 4).

The paucity of women in the partnership ranks has been attrib-

uted to high levels of female associate attrition, together with per-

ceived lack of business development (Dinovitzer & Garth 2015;

Patton 2005; Scharf et al. 2014). Donovon claimed that “the single

most important element of women’s inability to make partner is

the high attrition rate of women from firms...women cannot make

partner if they have left the firm” (1990: 142). Numerous studies

have documented women’s high attrition rate from law firms

(Dinovitzer et al. 2009; Hull & Nelson 2009; Noonan & Corcoran

2004; Patton 2005; Reichman & Sterling 2002) and private law

practice more generally (Kay 1997; Kay et al. 2013; Wallace 2001).

This movement is costly for law firms and the lawyers who

leave. Law firms incur a significant cost in the hiring and develop-

ment of junior associates as they strive to retain the legal talent

they have (Preenan et al. 2011). Turnover creates high costs due to

missed contributions of experienced firm lawyers, instability of

departments or teams, disruptions to trusted relations between

firm lawyers and clients, and loss of proficiency (Benson & Brown

2007). The cost of turnover is particularly severe if a component of

the lawyer’s knowledge was strongly firm-specific (e.g., inferred

knowledge of firm culture and business acumen) because this

knowledge is difficult to rebuild or replace (Kacmar et al. 2006).

These costs also extend to personal losses for individual lawyers.

Lawyers invest years in higher education and certification and

often graduate with sizeable student loan debt (Hirshman 2006).

Individuals who leave law after years of investment make a signifi-

cant change of course from their initial career aspirations. Even job

changes between firms or across sectors of practice disrupt individ-

uals’ lives in the short term and may have long-term costs in

regard to earnings and career advancement. For women lawyers,

for example, findings indicate those who have left private practice

incur difficulty to “opt back in” at commensurate job levels (Belkin

2003; Brockman 1994; Law Society of Upper Canada 2011).

Kay, Alarie, & Adjei 767

In response to women’s high rates of attrition, bar associations

and law societies have designed model policies intended to boost

the retention of women lawyers. Some law firms have implemented

programs and practices in efforts to retain women through periods

of their life where full-time work is not feasible. These programs

and practices include flexible work arrangements, parental leaves,

anti-bias training, and options to assist lawyers who leave and

return to private practice (Scharf 2012; Scharf et al. 2014). Recent

reports from law societies and bar associations call for research to

examine retention of women in private practice and to assess poli-

cies aimed at reducing attrition (Law Society of Upper Canada

2011; Williams & Richardson 2010).

Our study offers new insight to job exits that venture from pro-

fessional footing in private law practice. First, we pay close attention

to gender differences in the timing of moves and the factors that

encourage lawyers to leave private practice. Second, we explore the

influence of cohorts and age on exits from private practice. Third, we

incorporate innovative measures to tap the influence of education

factors, including law school debt and law school career preparation,

on job changes. Fourth, we examine the properties of jobs related to

the incentive system, time demands, and nature of work that may

influence job moves out of private practice. Finally, we investigate the

impact of parental and other leaves on women’s and men’s depar-

tures from private practice. Most studies focus on employment inter-

ruptions that are the result of unemployment rather than time away

to pursue other endeavors, and rarely look at gender differences

(Theunissen et al. 2011). Our study is the first to incorporate timing

of precursors to job leaving among lawyers. We turn next to develop

our expectations based on literature that examines timing of job

changes, gender differences in turnover, and causes of turnover

among professionals generally and lawyers more specifically.

Timing of Job Moves

When is movement out of private law practice most likely to

occur? Do lawyers move early in their career, as they explore

legal fields and “test the waters” for establishing themselves? Or,

do job moves take place after a few years, once lawyers have paid

off student loans (McGill 2006) and after they have accumulated

valuable practice experience that they can bring to their work as

in-house counsel or to a new business venture?

Research suggests professionals often switch jobs in the early

years. Novice professionals are perhaps more receptive to change

because this career phase is one of development and exploration, a

time when professionals acquire experience and refine their career

768 Undermining Gender Equality