Bias in the legal profession

I recently took an online CLE — continuing legal ed seminar — on Eliminating Bias, presented by Maryland lawyer Steven Vinick. Vinick presented some recent statistics from the American Bar Association on the makeup of the bar that surprised me. No, they astonished me.

Gender, 2015:
Male – 65%
Women – 35%

Vinick cites articles noting that despite this figure, roughly 16-19% of partners are women, and that women in elite law firms earn on average $66,000 less a year than men.

Race, in 2010: 
White – 88%
Black – 5%
Hispanic – 4%
Asian-Pacific American – 3%
Native American – <1%

The seminar did not include stats on disabilities or sexual orientation.

What stuns me is that this is what the profession looks like after years of women and people of color attending law school in greater numbers. Visnick notes that a client who values diversity may have trouble finding a suitable law firm, and if the client is looking to hire a law firm for a civil rights matter, this can be particularly important.

I’m not saying a white lawyer can’t do a damned fine job for a black client in a civil rights claim, or that lawyers of color must do that kind of work; I’m talking about perceptions here. Certainly statistics alone do not establish that bias exists in a particular interaction. But if this is what our profession looks like, it makes it hard for clients to believe they’ll get representation free of bias, let alone bias-free results.

Vinick points out that the legal profession is less racially diverse than most other professions, and that the makeup of most law firms would look like intentional discrimination in a private company. (And publishing, alas, isn’t much better. Lee & Low’s new survey on diversity in publishing shows that the field is about 79% white, 78% female, and 88% straight.)

Other studies Vinick quoted report that 57% of women thought judges appear to give less weight to women lawyers’ arguments, while only 12% of men thought so. 63% of women but only 19% of men said demeaning jokes or remarks against women were made “often or sometimes” in court or chambers. No doubt some would say women are “too sensitive,” but the point is that people who are not subject to a particular type of bias are far less likely to see that bias.

The good news is that more and more CLE and in-house training addresses conscious and unconscious bias. Law firms are becoming increasingly aware that discrimination can violate the rules governing the profession. The ABA, state bars, and individual law firms are talking about the issues. The Washington State Bar journal, the NW Lawyer, is running a lengthy series of articles addressing elements of diversity and bias, and I suspect other state bars are as well.

Where there’s talk, there’s hope for change.

So if you’re writing about fictional lawyers, judges, and court staff, think about these issues. How do they affect the dynamics? The spoken and unspoken, the conscious and unconscious motivations, the perceptions of whether justice is truly attainable.

13 thoughts on “Bias in the legal profession

    • The ABA says about 70% of lawyers are in private practice, just over half in firms of 1-5. About 10% work in government and 10% in business.

  1. Interesting. Leslie, I’m curious after reading this how many women leave the profession because of bias or because of income disparity. Just off the top of my head I think of you and Lisa Scottoline former?? lawyers. I just read her book Corruption and in it Ms. Scottoline incorporated some true “corruption” of the legal system. Are you still practicing law, and if this isn’t too personal, can you share why/if you left? Trust me I’m sharing this blog.

  2. I also didn’t comment on the race component. These apparently are 2010 statistics. But isn’t it a fact that the white population is greater and therefore that statistic makes sense for more white males to be in this equation? But… I believe there are more women than men in this country. So, while I hope that more diversity is looked at hard and qualified people are encouraged and helped to go to law school if they can’t afford it, I hope the issue of women and equal pay for equal work is considered as well. Am I off here?

    • Donnell, I do think it’s reasonable to expect the profession to mirror the population as a whole. It doesn’t. Here’s the 2014 estimates from the Census Bureau. Just to look at one measure, people who identify as white alone make up 77.4% of the population and people who identify as black alone, 13.2%. The ABA’s 2010 figures showed 88% of lawyers as white, 5% as black. Those are big gaps.

      Should the profession, and the law schools, be actively reaching out and recruiting a more diverse group of students and young lawyers? I think so, and many are. There’s all kinds of ways people are diverse, far more than race and gender alone. Socio-economic opportunity is a big one. Law firm management and structure are issues, too, as the NAWL graphic demonstrates. In the large law firms, are women on the management committees? The compensation committees? That’s a key factor, I think, in assuring equal pay for equal work, and equal chances for the biggest professional opportunities.

      Thanks for the conversation!

  3. You’re welcome. I think you know I was a court reporter, and I still have friends in the legal world. I’m wondering if the compensation has something to do with how many women work part time and to raise their children reduce their hours. Not trying to be argumentative just trying to open dialogue. I can think of women I know right now who are lawyers who stayed home and went part time for that very reason. I can also think of women who worked their tails off raising children and continued to work after maternity leave. Excuse me, but these women deserve to make MORE than their counterparts in my opinion. But no one has appointed me Queen of the Universe or asked me to serve on an ABA committee.

    • Donnell, I didn’t know you’d been a court reporter. Great eyes and ears — good fodder for storytelling! I’ve had the same Qs you raise about compensation, but I think the NAWL and ABA surveys correct for that, as best they can. It was interesting to see the billable hours report on the NAWL survey — women actually bill MORE hours than men, perhaps in keeping with that old line that women have to do twice as much to be thought half as good. And in my experience, the women lawyers I worked with were exceedingly conscientious about their work and billing and expense records. (More or less than men, I can’t say, but noticeable enough to make it worth noting.)

  4. Leslie, when my mother graduated from law school in 1924 (Brooklyn Law–Columbia didn’t yet admit women), her night school class had 12 women (to 100 men, including my father). I don’t think any of them succeeded in getting jobs practicing law. I thought one did, Birdie Amsterdam, who went on to become the first woman to serve on the New York State Supreme Court, but her Wikipedia article says she went to NYU School of Law, so maybe she was in my mother’s law sorority, an important source of sisterly support, rather than her law school class. I remember my mother saying Birdie succeeded by sacrificing any possibility of a personal life to her career. My mother combined a family with a career as a freelance writer and editor of legal books, got a doctorate in political science in her 60s, taught Constitutional law in her 70s, and developed a rather sweet friendship with Supreme Court Justice Ruth Bader Ginsburg in her 90s.

    • Liz, I LOVE your stories about your mother! It’s always fascinated me that there was a time in the early 20th century when some women were encouraged to get a higher education, even though they were then discouraged from using it. But then for decades, we regressed — when my brother graduated from U Mont Law School in 1974, I think there were 2-3 women in a class of 60, and my law school, Notre Dame, was the 2d to last in the country to admit women, in 1974, though it decided to catch up quickly and did so; when I entered in 1981, my class was 35% female, as was my 1984 graduating class. (Very low attrition, in both genders.)

  5. And I thought it was only Australia where the statistics stacked up similarly. On the other hand, as someone pointed out, attaining a law degree can be for the purposes of using law in a different environment, not necessarily a law office. It can also be a step to an international career. Just the same…so much for progress.

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