Saying Goodbye to Superwoman:
Finding Balance in the Law Firm Environment¹

By Professor Nicole B. Porter

Picture your average large law firm in almost any city. Take a snapshot of the incoming class in any given year. You are likely to see that approximately half of the associates are women. Now take a snapshot of the same incoming class five years later. The number of women still at the firm is likely to be significantly smaller. Finally, take a snapshot of the percentage of female partners at these large law firms. The percentage has, most probably, dropped further, to somewhere around 15% and sometimes even less.² So what is causing this decline of female faces in the firm? Most likely, it is caused by the unique issues faced by women who must combine a legal career with having a family.³

Professor Joan Williams of the University of California-Hastings College of the Law, has described the unique discrimination faced by women who are also mothers as the "maternal wall."⁴ As Williams states, most women never even approach the glass ceiling; they are "stopped dead, long beforehand, by the maternal wall."⁵ The maternal wall affects women with children in many aspects of their jobs, including hiring, promotions, pay and, sometimes, even terminations. It is difficult for mothers to perform as ideal workers due to pregnancy, maternity leave and, most importantly, the continual demands of child-rearing, which inevitably cause absences for illness, childcare issues and routine doctor appointments. Because they are not similarly situated to men or women without children, courts permit employers to treat mothers differently, which often means they are treated more poorly.

The maternal wall affects many women in a variety of occupations. In the legal workplace, the unique nature of the maternal wall is readily apparent. It is the change in assignments when a woman becomes pregnant: her superiors do not think she either can or will be willing to work as hard as she used to. It is the constant questions, rumors and innuendos about whether she will return after her maternity leave. It is the receipt of a nominal or non-existent bonus during the year she has her baby, while a partner tells her "this will definitely set you back." It is the agonizing decision she has to make to return to work: even though she loves her work, she cannot conceive of seeing her baby only one or two hours each day, but she cannot conceive of the firm tolerating her leaving the office every day at 5 p.m.

When she does come back, the maternal wall is the non-challenging assignments she gets because everyone assumes her heart and head will be with her baby and not at work. It is the bonuses or promotions she does not get because she does not bill the same hours as her male colleagues,⁶ who also may be new dads but who have wives who stay at home. It is the opportunities she does not get because they involve travel, and it is assumed she will not travel. It is being called "part-time," and being treated like half of an attorney if she tries to work a reduced-hour schedule.

Some of this is illegal. Most of it is not — at least not yet. So what is the solution to this problem? Further legislation may be in order, but, ideally, the solution will come from the legal profession itself. Law firms need to recognize that discrimination against mothers and the firms' inability or unwillingness to provide true flexibility and balance to their attorneys will lead to the continued costs of high attrition. Almost all large firms that I am aware of at least give lip service to diversity, and it is my impression that most care about having a diverse workforce. But many firms have struggled with the constant problem of retaining female attorneys and often have no idea how to correct the problem.

The solution is two-fold. First, firms need to recognize and then avoid the discrimination that occurs from stereotypical assumptions, such as women who are pregnant will not work as hard, or women with families cannot travel. Such stereotypical assumptions not only hurt women, but are also illegal. Second, the firm needs to offer a non-stigmatized, balanced-hours program that truly gives the attorneys who use it the balance they need to remain employed. Many women who choose to leave the legal workplace completely when they have children would stay if they thought they could work a balanced schedule that would allow them to remain a valuable member of the firm.

In order to accomplish these solutions, firms need to recognize the debilitating effects and costs of attrition, and the harm caused by having a non-diverse workforce. In other words, they need to have a real desire to make a difference, and the entire firm has to be willing to change the definition of success so that success can mean something other than simply billing the most hours. Once the firm has the desire to make a difference, it needs to implement a plan to change the culture and the structure of the legal workplace. It is not possible in just a few pages to go into detail regarding what that plan would look like, but there is an excellent article on this topic written by Joan Williams and Cynthia Calvert, co-directors of the Project for Attorney Retention, titled "Balanced Hours: Effective Part-Time Policies for Washington Law Firms," (PAR Final Report, 3d ed., April 2002).⁷ In a nutshell, the article, which was based off of a year-long study of Washington law firms, provides law firms with a variety of reasons for providing balance to their attorneys, and offers detailed instructions on how to implement such a plan, including a model balanced-hours policy that firms could adopt as their own.

Most importantly, firms need to work to eliminate the stigma attached to being a working mother by convincing attorneys in their firm that billable hours are not the only measure of success. In fact, as far as most clients are concerned, the hours an attorney puts in on their case is not nearly as important as the quality of the work they do, the relationships they form and the knowledge they bring. In an era where keeping clients is becoming increasingly more difficult (and evidence shows that clients prefer stability in the attorneys who work on their projects), the cost of attrition is simply unaffordable. The problem is that many employers confuse the issue of who has talent with the issue of who puts in more face-time. While I do not deny that firms need attorneys who are willing to put in the long hours, they also need good attorneys — particularly ones who are exceptional at maintaining the all-important client relationship. Many women who are not willing to work 2,000+ hours per year because of family obligations are willing and able to bring unique skills to their job: both commitment and an exceptional ability to keep clients happy.

When reduced hours are mentioned, many assume that such a plan is simply unworkable, both financially and practically. In response to the financial argument, Williams and Calvert point out that the accounting used to support such an argument is flawed, in part because it focuses only on revenue, rather than also looking at expenses. One of the flawed economic assumptions is that overhead is the same for all attorneys. In fact, partners usually have bigger offices, and have much higher expenses related to business development. As a practical matter, balanced hours attorneys impose only marginal costs. While office space is the biggest expense, the offices would still be there (yet empty) if the reduced-hours attorney was not working there.⁸ As stated earlier, firms also do not consider the significant cost of attrition.
When partners complain that they cannot have part-time attorneys working on their projects, they need to ask themselves, do their full-time associates work only for them? Most likely, the answer is no. One partner at a large Washington law firm came to this "startling realization," stating:

[A]n outstanding woman associate who had been working with me on a piece of major litigation [became] involved in another matter that required her to work two days a week outside the office for a different partner. [Rather than lose her work entirely], I decided to take three days a week. And then I realized: virtually every associate who works with me works on other cases for other partners, and is therefore a part-time lawyer as far as my cases are concerned.⁹

What difference does it make to a client if the attorney is spreading her time between three clients, or two clients and a family? As long as the reduced-hours attorney does not try to continue with the same workload (i.e., the same number of cases or matters), she will still be able to give the same amount of attention to each case on which she works.

Finally, some firms are concerned that if they allow and encourage workable reduced-hours programs, everyone will want to adopt such an arrangement.¹⁰ Williams and Calvert state that this fear is just that: a fear that has not come to fruition. Firms that have worked hard on work/life issues may have higher program usage rates than other firms, but no floodgates can be said to have opened. Consultants agree that usage will top off at between five and ten percent.¹¹

Even though the common fear is that firms cannot afford to offer part-time options, the reality is that they cannot afford not to offer usable and effective reduced-hour policies. "To keep keepers in an era when half or more of law students are women, and in a society where the younger generation has become more insistent on work/life balance, law firms need to offer balance without career penalties."¹²

Until and unless all law firms adopt policies like the one proposed in the Williams and Calvert article, my recommendation to women is more personal in nature. I recommend that women with children who are working as lawyers or in any high-pressure professional environment need to learn some mental balancing tricks. Mother-attorneys have to recognize that it is virtually impossible for them to be everything to everyone, all at once. When a mother-attorney is giving 100% on the job, she is not going to be giving 100% to her family, and vice versa. Feeling guilty about not giving 100% to everyone all of the time only exacerbates the problem. Learning to constructively manage that guilt with some positive self-talk is one of the most important balancing-tricks a mother-attorney can do.

I don't have all of the answers for what it takes to be a success at both raising a family and having a rewarding, successful legal career. Certainly, there is still a great deal that needs to happen structurally within law firms in order for women to be able to successfully fill roles as both mother and lawyer. Nevertheless, I do believe some of the problem can be solved with an attitudinal adjustment. As such, my advice to women-attorneys is this: recognize that you are only human. It is virtually impossible for you to be everything to everyone all at once. If you try to be both the most hard-working attorney and the world's most perfect mother, you will burn out eventually. The only thing for which you should strive is finding balance.

Footnotes:
¹This article is derived in part from an essay I have written, titled: "Redefining Superwoman: An Essay on Overcoming the Maternal Wall in the Legal Workplace," forthcoming in 13 Duke Journal of Gender Law and Policy (Spring 2006).
² Although statistics will vary depending on the study, in one article, "Where's the Class of '88?" it was noted that in 1988, 41% of law school graduates were women and in 2003, 16 years after those women graduated, only 16% of the partners in the law firms were women. Joanne Cronath Bamberger, "Where's the Class of '88?" (9/22/04) <http://www.law.com/jsp/article.jsp?id=
1095434436715>. Considering that partnership track usually averages around eight years, there is clearly a disconnect between the number of women associates and the number of women partners.
³ I do not mean to suggest that men are not similarly concerned with work/family balance—many are—but it remains a fact that women still do a disproportionately large amount of the child care and household work, and therefore find the work/family balance issue to be a more severe problem.
⁴ See Joan Williams, "Unbending Gender: Why Family and Work Conflict and What to Do About It" 69-70 (2000).
⁵ Joan Williams, "Canaries in the Mine: Work/Family Conflict and the Law," 70 Fordham Law Review 2221, 2223 (2002).
⁶ The hours problem is one of the most significant problems for mother-lawyers. Consider this: "Eighty-five percent of women become mothers during their working lives. Ninety-three percent of mothers aged 25 to 44 work fewer than fifty hours a week year round [sic]. The maternal wall results when lawyers are offered, as their only option, a schedule very, very few mothers are willing to work." Williams, supra note 5, at 2223.
⁷ 8 William & Mary Journal of Women & Law 357 (2002).
⁸ See id. at 413-14.
⁹ Id. at 415-16 (quoting Andrew Marks, Partner at Crowell & Moring).
¹⁰ See id. at 421-25.
¹¹ See id. at 421-22.
¹² Id at 426.

Professor Nicole Porter's research interests lie between the areas of disability issues, and issues surrounding women in the workplace. She enjoys employment law because it "deals with real life, real people, and real relationships, and is not simply about money or business, but about the ways in which people interact with one another in the workplace." As one closely connected with her scholarly work, she readily admits that her "brain is wired to find a way to solve problems," and her research is "very goal oriented."