Women’s Choice in Reproductive Rights Decisions Gutted by USSCT

I am not pro-abortion, and I am not anti-abortion. I stand in favor of a woman’s right to choose. I respect the opinions of others, and creating a forum for politically-charged issues is not the mission of the Best Friends at the Bar project. I have not wanted to pit my followers against each other in ways that would rend the fabric of support that I have created for women lawyers for almost 20 years.

I also was content to believe that the guarantees established by the landmark decision Roe v. Wade, and later upheld in Planned Parenthood v. Casey, would survive even the greatest judicial scrutiny. I was content to believe that we never would return to a time when women were forced to resort to dark alleys and butcher procedures in the large cities of America and to dangerous procedures at their own hands throughout the land. I was content to believe the now Supreme Court justices, who appeared to buttress the sanctity of the precedent of Roe during Congressional confirmation hearings.

However, my confidence in the Rule of Law and in the quality of the judiciary was misplaced. The right to choose an abortion, as established in Roe v. Wade and based upon the existence of fundamental rights of privacy in the US Constitution, was dealt a devastating blow yesterday when the Supreme Court overturned Roe and left millions of women in America defenseless by putting the abortion decision in the hands of elected officials in state legislatures.

As a result of yesterday’s decision in Dobbs v. Jackson Women’s Health, women in their reproductive years, which includes many young women lawyers I have advocated for over these many years, now must worry about where they live and whether they reside in a state that has already curtailed or intends to curtail the right to choose. Now so many mothers have to worry about their daughters and their granddaughters and what their future dilemmas and choices may be. Now women, who would choose abortion but cannot afford to travel to a jurisdiction where that right is protected, will be forced to make another decision, and now we must be wary of the vulnerability of other privacy rights, including the right to love and marry who one chooses.

These subjects were addressed yesterday by the chair of a Big Law firm, and her sentiments echo my own. Here is part of what Julie Jones of Ropes & Gray wrote to her law firm colleagues, as reported on Above the Law:

“This morning, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health, ending 50 years of federal constitutional protection of abortion rights.  The Dobbs ruling has created extraordinarily strong feelings in many of us.  As a lawyer, I reflect on Supreme Court jurisprudence, the principle of stare decisis and the future of privacy rights and other civil right protections in the United States.   As a woman, I have a profound feeling of vulnerability caused by the elimination of a long-standing right of women – a right that affects their bodies and their agency.  As a person with privilege, I recognize and worry about the decision’s disproportionate impact on women with limited resources.   As an American, I fear the divisive nature of this topic will further fracture an already angry and divided citizenry.”

Now we have so much more to worry about.

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Predictions about a Possible Recession and What it Will Mean for Young Lawyers

The talk these days is all about recession. This year, the year after, whenever …… the possibility has everybody concerned. The Feds are trying to get the economy under control to fend off that result, but that is not giving comfort to a lot of people.

Lawyers are no different than the rest of the people. Lawyers also are concerned, especially lawyers at the bottom of the pyramid, who lack a lot of experience and might be considered expendable by management. And there is little comfort in the experience of the last recession when law firms laid off so many newbie lawyers during 2007, 2008 and 2009. Shedding capacity in this way also affected those in law school at the time, who were about to become part of the excess. I recall counseling law students in 2008 and 2009 to get a side job and take an extra year in law school to avoid graduation during a dreadful job market. It turned out to be good advice.

But coming up with good advice as we face another possible or even probable recession of some magnitude is not easy. I have had my eye out for indicators of how it will play out for young lawyers, and finally I have found something to pass on to you from a recent Above The Law article. That article draws on comments made to the American Lawyer by a Big Law business development officer, who drew on the experience of the past recession in predicting behaviors by Big Law in the immediate future.

His prediction is that law firms, especially large law firms, will be very reluctant to repeat lay-off policies from the 2008 recession because those policies left them with leveraging shortages and a “bubble in their associate ranks that was hard to close.” Rather, he predicts that natural attrition will address enough of the reduced demand to avoid a staffing “catastophe in the future.”

But it was the rest of his prediction that really got my attention. He also claims that some firms are considering opening up equity partnerships to attract and retain talent during these uncertain times.

Now, that is news worthy.

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Closing the Gender Pay Equity Gap

Most of you know that there is a gender pay gap for lawyers in our country. Simply speaking, women lawyers fall significantly behind men in terms of compensation, especially in large law firms. In Big Law, the gender pay gap widens as lawyers climb the experience ladder, and women lawyers continue to struggle to get full credit for their work or suffer setbacks for having children. These issues, and what to do about them, were explored recently in a Bloomberg Law article, and the information, especially the historical data, are worthy of your attention.

And that is true whether you are a male or female lawyer. Women have a vested interest that is obvious. Men have an interest because losing the talent of women due to issues of inequity will impact them as well.

Although men and women start off on equal footing in terms of compensation, the gap begins to widen at the partner level where women make up only 22% of equity partners and earn only 78% of what men make. These figures are supported by surveys conducted by the National Association of Women Lawyers, and the figures have not changed much in the last decade.

The challenge is what to do about it. As pointed out in the article, people who make compensation and related decisions at firms think they are being fair, and most of them want to be fair. But the statistics tell a different story.

All kinds of unfair assumptions are made about women lawyers. It is assumed that they will have children, and it is assumed that they will no longer want to work once they have children. And it is assumed that if they have children and keep on working, they will not be as serious about their professional lives. As a result, those women start to get fewer opportunities in terms of cases and face time with important clients.

Annual reviews, which determine both salary and bonuses, are another problem. Those reviews start with self evaluations, something women historically do not excel at. Women are typically not comfortable bragging about their accomplishments or misrepresenting their expertise, and that puts them at a disadvantage in the review process. If firms are going to value big personalities as much as work product, many women will not be able to compete.

But it is origination credit where the rubber hits the road. It is the biggest factor in determining compensation and promotions at most law firms, and it derives from being given the opportunities that will lead to having responsibilities for clients. If the work is for institutional clients, and a senior lawyer holds the origination, origination credit for both junior male and female lawyers can be a long time in coming. And significant origination credit is how a lawyer gets through the gate to equity partner, and that is where the money is.

Today, however, there is some sign of change in the air. That change is coming from clients, who want assurances of pay equity among their lawyers. And the number one new question from clients has to do with origination credit. That is progress, but if women are not among those at the firm making decisions on compensation and promotion matters, real change may be elusive. And because women lag far behind men in terms of firm management and leadership positions, there is arguably inherent bias on compensation committees.

It is clear that significant and lasting change needs to come from within. Law firms need to recognize that their processes have not been transparent to date, and they need to do something about it. Lack of transparency and taboos about discussing compensation render junior lawyers powerless.

Specifically, as the article discusses, law firms need to start auditing compensation decisions and looking for outliers. Formulas need to include more than just billable hours and receivables, and variables in billing rates need to become part of the evaluation. And law firms must be on the lookout for biases like those that favor “big law firm personalities” that hold women back. Not just women as a group, but individual women.

What is fair is fair. But it is complicated.

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The Elusiveness of Work-Life Balance for Young Lawyers

I have written for years about the elusiveness of work-life balance, including an entire book about it for women lawyers.  That book was published in 2012, and here is a very recent article echoing many of those same themes. The search for balance is a never-ending process.

Work-life balance is not accomplished in the knowing. It is accomplished in the execution.  Only YOU can define a healthy work-life balance for YOU.

Sometimes your emphasis has to be more on the personal side, and sometime your balance needs to be more on the professional side.  You don’t measure it on a day-to-day basis. You measure it over time.  That is the only balance that is real.

I often hear young women lawyers complain that the balance is not being “assured” for them by the profession.  They get angry when it is suggested that they have to keep their eyes on both sides of the scale.  They become offended when they hear about the pitfalls of the profession for lawyer/mothers in particular, and they feel slighted.  

It does not matter how many times they are told, “You are smart. You are capable of multi-tasking. You’ve got this.”  The emphasis continues to be on the perceived slight. What they miss is that the advice is being shared to make them stronger and more successful.  

They are not being told to ignore their family responsibilities or other important aspects of their personal lives. But they also are not being told that life is fair every day of the week or every week of the month or every month of the year either.  The law is a tough and demanding profession, and it includes sacrifices that do not always feel good.

Some days will feel like hell, in fact, but other days will be so exhilarating that a lawyer/mom actually can feel like she does have it all — a combination of the children who light up her life and a profession that both challenges and compensates her in a way that allows for a better life for her children.

Do not resent those who are trying to help you. Focus on the work-life management that is being suggested in this recent article and understand that you have the power to bring about a satisfactory solution for YOU. The article rightly suggests that “We deserve more than balance. We deserve to be honest and respectful of ourselves.” 

Honesty and respect for yourself will come from within yourself. It is the first step. Identifying your priorities and your goals are key. Those will dictate the balance that works for you.

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Young Lawyers Need to Embrace Mistakes as Opportunities

The great jazz legend Miles Davis once said, “If you hit a wrong note, it’s the next note that determines if it’s good or bad.” Like all great jazz musicians, Davis was a master of improvisation. As such, he saw musical mistakes as opportunities — a philosophy he carried into the rest of his life.

Miles Davis’ words provide a valuable lesson. It’s how we react to so-called mistakes that determine whether the ultimate outcome will be negative or positive. As the great jazz pianist Herbie Hancock said, “Miles was able to turn something that was wrong into something that was right.” 

I play the piano, but I never took music theory seriously. I wish I had because it would make a recovery like Davis envisioned so much easier when I hit the wrong keys and start down the road to dissonance. Music theory teaches you how chords and notes relate to one another and how taking that next step from mistake to recovery is possible and creative.

You don’t have to be a musician to understand this. It is a theme that presents itself in so many different settings throughout our lives. Not dwelling on past mistakes and taking advantage of the opportunities presented by those mistakes is useful in all of those life experiences, including the practice of law.

Ask any seasoned lawyer and he or she will tell you that it was the mistakes that taught them the most. They learned to rebound and never forgot how that mistake was made and to avoid making it again. They grew as practitioners.

I hope that you will have those same opportunities and that you will embrace them. It will accelerate your success and your tolerance for the mistakes of others. It will make you a better lawyer and a better mentor. It will make you a better leader and a better person.

There is simply nothing to lose and so much to gain.

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Women Lawyers Making Strides at Large US Companies

A recent report demonstrates that almost half of the lawyers at top US Companies today are women.  New data released by executive search and leadership advisory firm Russell Reynolds Associates shows that nearly half of the top lawyers appointed at the 500 biggest companies in the U.S. in 2021 were female, a sign of some diversity progress across large corporate legal departments.

These figures for corporate diversity outperform those for most law firms, which have historically fallen short in terms of promoting and retaining women and minorities. There is still a lot of work to be done in the private sector to arrive at gender equity.

Although the advances for women lawyers in the corporate world are encouraging, women lawyers should not have to leave private practice to experience equity for retention and advancement. Diversity, equity and inclusion needs to be at the top of “to do” lists at law firms as well. It will take commitment, creativity and flexibility to bridge the gap. And it needs to come sooner rather than later.

For more on the advances for women lawyers in the corporate world, see this article.

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How are Women Lawyers Advancing?

Just when I start thinking that progress is being made in the advancement of women lawyers, I get hit with new information that sets me back on my heels. I have been advocating for women lawyers for more than 40 years and most significantly for over 15 of those years as the founder of the Best Friends at the Bar project. It has been my great pleasure to promote women lawyers, but it also has been frustrating. Knowing that women lawyers are every bit as competent as male lawyers, and then reading survey information demonstrating disparities in the advancements of these two groups, adds significantly to that frustration.

I always want to be certain that I trust the sources of the information that is being reported. The most recent information comes from a report from the National Association of Women Lawyers (NAWL), a group which I have collaborated with in the past, and is summarized in an article by Vivia Chen in Bloomberg Law, a journalist who I admire for her thorough research, objectivity and honesty. So, I have confidence in the information reported.

The NAWL report is based on analyses of responses from 75 firms in the AmLaw 200. The bottom line, as summarized in Bloomberg Law, is that “women rarely break into the top 10 club of the most highly compensated members of the firm [and] women represent only 22% of equity partners.” We know that the equity partner figure has been hovering near that percentage for almost a decade, so that is not very encouraging.

The most shocking figure reported by NAWL is that, although the law firms surveyed are aware of these issues and are addressing them in pretty “sophisticated” ways — like removing gender biases in compensation and performance reviews — the advancement numbers have not budged much. Frustrating, for sure.

Read more about the NAWL report and the suggestions for firms to help hasten the advancement of women lawyers. Surely there remain reasons to be hopeful, but, basically, I see this as a bummer moment. Can’t help it.

Click here for the Bloomberg Law article.

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Women’s Rights on the Cutting Board

The shot over the bow created by the leak of a draft decision of the US Supreme Court eroding the rights conferred in Row v. Wade is alarming on several levels. It has grabbed the attention of media sources throughout the country, both conservative and liberal, not only because of the content of the draft decision by Justice Samuel Alito but also because leaks of any kind have no place at the US Supreme Court.

As for me, it is the content of the draft opinion that concerns me most. The reverence for the Court and individual justices has been called into question on numerous occasions recently, and this is just another issue supporting the view that a review of policies and procedures at the Court is overdue.

The content of the draft decision in Dobbs v. Jackson Women’s Health Organization gets murky for women. I understand that some of them have religious reasons to object to abortion, and some of them may have cultural or deep experiential reasons as well. And still others cannot find a constitutional basis for the right.

But those, who base their objections to abortion rights solely on partisan politics, are in a separate category. Their reliance on political and party affiliations can interfere with objective evaluations of the facts, the law, and the consequences of their decisions.

The erosion of abortion rights has the potential to affect the fate of so many other rights that women rely on and need if they are to be fully equal in our society and have full access, as men do, to economic opportunities. Think about birth control/contraception rights. Think about access to good, affordable medical care, childcare, affordable housing, and time-off from work after childbirth or adoption. Think about the right to marry who you love.

Women rely on these rights and accompanying statutory privileges to satisfy the needs of their personal lives and to participate in businesses and government in meaningful and satisfying ways and to be competitive for top jobs. Eroding any one of those guarantees, is a very slippery slope.

When I think of this, I put it in the context of history when Roe v. Wade was decided, almost fifty years ago. That decision was handed down only a year before a married woman in the United States needed her husband’s permission to get a credit card, something that did not change until 1974. I wrote a law review article about it (Ohio State Law Journal, Vol. 40, Number 3, 1979) and shocked an audience when I reported it out as a speaker at a joint conference of the DC Women’s Bar Association and Georgetown Law during that same time frame. The gasps in the audience were audible as women lawyers and law students realized that a right so fundamental to their economic well-being had nearly escaped them without notice.

Think about that and how easy it has been to take women’s rights for granted recently as our society has evolved on gender issues. Develop an educated background and objective analyses for your positions and opinions on the weighty issues still facing women today. The women of the future — our daughters and our granddaughters — are depending on it. The process of honing informed positions and opinions is true to our training as lawyers, and we should use that process to arrive at conclusions that truly reflect our concerns and are not emotional and political in nature.

Politics come and go. They shift with changing times and the changing faces of leadership. They can be ephemeral.

That ephemeral nature, however, is not true of women’s rights. As was stated so many years ago at the United Nations Fourth World Conference on Women, “Women’s right are human rights.” And human rights are lasting rights.

Women need to hold these rights dear. They need to protect the future of women, minorities, and marginalized communities. So much is at stake for all of them.

 

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