Victims of neo-liberalism: Why so few women in Australian law firms reach the top and stay there

Women are grossly under-represented at the higher levels of the Australian legal profession. Nationwide, barely one-fifth of the partners in commercial law firms are women. A much tinier fraction are senior partners, SCs or judges. Yet young women account for over 60 per cent of the country's law graduates, and, on average, the annual "intake" of first-year lawyers in Australian firms is at least 50 per cent female.

That means a lot of talent and experience is going to waste.

The situation has not improved since the mid-1980s. In fact, while statistically similar, it is much worse today. A generation ago it was still possible to argue that big change had just begun, and that time should do the rest. That comforting line is no longer tenable.

Of course, the problem is not confined to the law, still less to Australia. To a greater or lesser extent, the same under-representation of women exists across the West and in most other professions, such as stockbroking and accountancy. So too, in big business, especially the banking sector.

But the focus of this article will be the law – in particular, mid to large-sized private firms of solicitors – in respect of which a few special factors are at play.

Let's begin by eliminating some red herrings.

For a start, overt sexual discrimination can be ruled out as a significant factor in female under-representation. During my twenty years in the profession in Sydney, I saw almost no evidence of it. In any case, such behaviour is already illegal.

Nor, to any significant extent, am I inclined to blame the problem on more subtle forms of deliberate bias in favour of men.

True, there remain a few male partners in most Australian law firms who are social reactionaries and/or misogynists. Such men point to the traditional lack of women in partner ranks as a reason to continue to exclude them, and/or to women's alleged lack of "legal savvy" or "hard-nosed negotiating skills".

But the vast majority of today's young and middle-aged male lawyers are not of that mindset. They like and respect their female colleagues and treat them as equals. More importantly, the influence of old-style Neanderthals – to the extent they remain in positions of seniority – is waning, and has been for a long time.

In Australian law firms today, there is general agreement that the under-representation of women at senior levels is a huge problem. If nothing else, it is publicly embarrassing. Most male partners would be pleased if the numerical imbalance could be corrected – though not at any cost.

What, then, is the solution?

For years now, rafts of possible measures have been mooted. Some have been tried, with little or at best modest success; some are still talked about. But none of them go to the heart of the real problem.

Thus, "mentoring" programs for women, improved "corporate governance" of law firms, tougher public reporting requirements of female numbers/pay scales etc., informal "quotas" or "targets" – while not necessarily bad in themselves, these steps have amounted to little more than window-dressing.

Somewhat more to the point, I think, are suggestions that parental leave entitlements be made more generous; that childcare arrangements be upgraded and subsidised; and/or that part-time work be encouraged – in each case for both women and men.

Such measures, it is argued, should enable women more readily to balance the competing demands of work and parenthood.

The aim is to help women overcome the so-called "maternal wall."

Steps of this kind may well be just and desirable, though it's a moot point whether today's breed of corporate clients are prepared to tolerate any arrangement which reduces their level of continuous access to a key lawyer (such as part-time work) or which increases their legal costs (overheads must either be passed on or absorbed).

In any event, and with due respect to those who think otherwise, this too is tinkering on the edges. At best, such measures may make life a bit more bearable for the senior lawyers who choose to stay in the workforce after becoming mothers.

There is indeed a "maternal wall" in Australian law firms. It looms large for all heterosexual women as they approach their thirties – if not earlier – but its causes and effects are, in my view, misrepresented or misunderstood.

There is an elephant in the roomful of lawyers and sociologists seeking to explain the lack of women at the top in commercial law firms. That elephant is called neo-liberalism – or, as the American writer Robert Reich has dubbed it, super-capitalism.

In the early 1980s, the West embarked upon a period of profound political-economic change. The process continues to this day, having been but briefly interrupted by the Global Financial Crisis of 2008-9.

The main features of super-capitalism are unregulated free markets, intense competition for market share amongst the providers of goods and services, vastly increased consumer choice, vastly reduced job security, and near-unprecedented disparities of wealth and income (which grow wider every year).

All aspects of life have been affected. Once venerable professions such as the law have been affected to a radical degree, and the profession itself is in large part to blame.

In blunt terms: an Australian commercial law firm is no longer, for most lawyers, an enjoyable place to work. A generation ago, solicitors were respected members of the community who, in return for comfortable remuneration, and a "gentlemanly" working environment, bore onerous responsibility for solving important, complex and/or difficult problems.

Much has changed since the mid-1980s, largely for the worse. (I mean worse for lawyers, not clients – who, contrary to popular mythology, mostly receive good if not excellent service).

The lot of an Australian commercial lawyer today is to worship at the altar of their big clients, too many of whom are demanding, disloyal, ungrateful and/or obsessively cost-conscious; to slave long and unpredictable hours; and to juggle continuously a slew of tight deadlines, often unreasonably imposed.

Everyone must now be available "24/7," a dire imposition facilitated by the wonders of modern technology (mobile phones, email, video-conferencing, Blackberries and such).

But worst of all, especially for more senior solicitors, is the relentless and never-ending internal focus on "profitability."

Of course, thanks to super-capitalism, these are features of many white-collar workplaces today. But lawyers, particularly female lawyers, find themselves under the hammer more frequently and more intensely than most. A good number are unable or unwilling to put up with it.

A person who chooses to become a stockbroker or a banker or an accountant expects, perhaps even wants, to immerse himself in the vulgar cut-and-thrust of business and finance. Some will admit openly that their goal is to get rich quick.

But, at least until recently, that is not the reason most people choose to become lawyers. Few anticipate when starting out that The Australian Financial Review will become essential daily reading if they wish to advance. The Bar is another option, but it's a very tough life too.

Most students who enrol in law courses at university are bright, ambitious and idealistic. Many are of a humanist bent; they study law because science (and hence medicine) is not their bag; they imagine making the world a better place, or, at least, honourably serving the grand old institution of "the Law."

Most are keen to work hard and, up to a point, they will cope with, even relish, the stresses and strains of professional practice. What they are not ready for, I suspect, is the stark fact that "the Law" per se has become a peripheral part of modern legal practice.

When partners of law firms meet, they spend almost no time at all discussing legal matters. Specialist knowledge and technical excellence (to adopt the jargon) are treated as a given.

A large chunk of partners' time is spent arguing how to maximise "profitability" – retaining clients, getting new ones, expanding "revenue", promoting "efficiencies" (i.e., cutting costs), and appraising and appeasing staff.

The rest of partners' meeting time is devoted to the most contentious topic of all: how to divide up the firm's profits. In short, who gets what?

To be fair, most partners do not enjoy these discussions. Most are decent people trying to survive by the insane rules of super-capitalism. They are grateful for the large sums they earn and have no wish to dwell unduly on monetary matters. Whether they earn X hundred thousand dollars or Y hundred thousand dollars per annum is neither here nor there, as long as their legal ability and their contribution to the firm is not unfairly impugned.

But, invariably, in all firms, there are a handful of self-styled "rainmakers" and "heavy hitters" and "top performers" who insist that they deserve more money than they are getting. They not only complain about their (terribly inadequate) share of the existing pie, but about the size of the total pie itself (also terribly inadequate). So they agitate.

The measures they propose routinely entail making life yet more miserable for everyone else in the firm, from "underperforming" partners right down to the tea ladies.

Lawyers of this kind take their lead from ASX 200 CEOs, or merchant bankers, or other superstars of the corporate world, many of whom are their clients. Management is bound if not inclined to listen to them.

Thus are the ways in which super-capitalism is perpetuated. It's the kick-the-cat syndrome.

It is interesting to note that doctors do not seem to have prostituted themselves to quite the extent that solicitors have. A lawyer who rings a specialist doctor demanding an urgent appointment will (to put it mildly) be treated much less deferentially than a wealthy doctor who rings a specialist lawyer and makes a similar demand. Doctors still have some self-respect.

To return, then, to the original question: why are women under-represented in senior positions in Australian law firms?

The answer, I believe, is straightforward. Those of neo-liberal bent may not agree with me, nor those who adhere slavishly to the creed of political correctness. But I close with four propositions.

First, Australian law firms are extremely tough places to work, and it gets tougher rather than easier the more senior you get.

Second, many young graduates who start work as solicitors at Australian law firms today, men and women, are simply not suited to the work. Even if they "succeed," and even if they don't admit it openly to the powers-that-be, many come to despise the job.

Third, around the age of thirty, if not sooner, women are much more likely than men to be honest with themselves and get out. Perhaps women have more common sense.

I risk being lynched for saying this, but women who are married to wealthy or potentially wealthy men (a common situation nowadays) can more readily afford to suffer a reduction in their personal income. In any case, opting out of one's chosen profession, or switching to a less lucrative job, does not carry the same level of social stigma for a woman as it still does for a man.

Finally, women contemplating motherhood are likely to make an additional judgment. For all but the most brilliant, robust, organised and resourceful of women (the so-called super-women of modern mythology), coping with life as both a loving mother and a partner at a law firm is so fraught a challenge as not to seem worth the effort. For many such women, the prospect of motherhood is a blessed, welcome diversion.

In such circumstances, what is in operation is not a maternity wall but a maternity escape-hatch.