Are We on The Brink of a Female ‘Exodus’ from Big Law?

Will the pandemic spawn a major female brain drain in law? Or is that just a lot of hooey?

For months, I was in denial. That’s because I’ve been hearing that the pandemic hasn’t been that bad for women at all.

“Zoom has been an equalizer,” says Suong Nguyen, a partner at Quinn Emanuel in Silicon Valley, about participating in remote hearings and mediations. “Now everyone has a seat ‘at the table’ because we all have the same space on Zoom.” Plus, adds Nguyen, “Zoom has been great for business development—and I can have lunch with my daughter!” Another advantage, say female lawyers, is that male bonding events like golf outings, cigar bar junkets, and football games have been sidelined during the pandemic. “Now, men are stuck like me working,” says a female lawyer at a bank.

Alas, these women might not be representative of the whole female experience during Covid-19. According to a new study by the American Bar Association (“Practicing Law in the Pandemic and Moving Forward”), which surveyed 4,200 ABA members (54% men and 43% women) from September 30 to October 11, 2020, the pandemic has been no friend to female lawyers. Though Big Law lawyers have generally worked like dogs during Covid and suffered stress as a result, women have had a far worse time. The ABA study finds that women are going bonkers trying to juggle family and work, so much so that many are thinking of downsizing their careers or dropping out entirely.

“It is clear that the ‘she-cession’ is occurring in the legal industry,” says Katherine Helm, a New York-based partner at Dechert who has three school-age kids. “I have seen both female associates and partners quit outright or downgrade their careers over the past year,” noting the struggles that women with young kids have. She calls the supposed “benefits” of the pandemic “toxic positivity,” that’s “not particularly helpful to boosting morale or encouraging women to stay in legal practice during these trying times.” The reality, she adds, is that “the gender effects in the legal profession appear to be on par with other working class industries.”

Unfortunately, she might be right. The ABA study amplifies the ominous findings inMcKinsey/LeanIn 2020 report on women in the workplace, which reports that 25% of women in the workforce “are contemplating what many would have considered unthinkable [before the onset of the pandemic]: downshifting their careers or leaving the workforce completely.” And for women with children, that number is one in three. What’s worse, the McKinsey/LeanIn report concludes that women could be set back by half a decade, resulting in “far fewer women in leadership—and far fewer women on track to be future leaders. All the progress we’ve seen over the past six years could be erased.”

That dire warning might be already playing out in Big Law. The ABA report finds that more than a third (35%) of women are thinking of going part-time, an uptick from previous years. And the hardest hit group are women who represent the next wave of law firm partners: Those with younger kids. The report finds that 53% of women with children age five or younger and 41% of women with children age six to 13 are thinking about going part-time. More alarming, 37% of women are considering quitting entirely because of the pandemic.

“They are typically women who are five to 15 years out of law school who are enormously profitable for law firms,” says Stephanie Scharf, a co-author of the ABA report, about those who are most likely to downsize their careers. A partner at Scharf Banks Marmor and a principal of consulting firm The Red Bee Group, Scharf adds, “the 24/7 culture, the continuing pressure during Covid in which firms act as if it’s business as usual, is causing some with babies to think, I don’t want to stay here.”

Surprisingly (or not), the ABA report finds that lawyers of color, who comprised 15% of the respondents, tend to experience higher levels of stress than White lawyers, yet are less likely to to downsize or quit their jobs. One reason, surmises the report, is that lawyers of color often come from less privileged backgrounds and have to work full time. Still, women overall rank high on all indicators of stress.

“There’s definitely a disproportionate impact on women,” says co-author Roberta Liebenberg, a partner at Fine, Kaplan & Black and co-principal of Red Bee. Not only do women still do the heavy lifting in childcare and housework, she explains, “but they worry about staying on the partnership track even though they face far more distractions working from home [than their spouses].” The result: “We believe there’s the potential for an exodus of diverse talent in law firms,” sums up Liebenberg.

An exodus? I’m envisioning a phalanx of women pushing expensive baby strollers out the door. Considering how long it’s taken women to pass that 20% equity partnership mark in Big Law (women make up 21% equity and 31% nonequity partners according to National Association of Women Lawyers’ 2020 survey), can we really afford to lose 25 to 35% of female lawyers in their prime? (Remember, women have constituted about 50% of students at top law schools for three decades.) Before you know it, women will represent just 15-16% of equity partners, just like the bad old days.

Though the data isn’t in about the exact number of women who’ve downsized their careers because of the pandemic, we’re bracing ourselves. So what can be done? Or is it already too late to keep women in their careers?

Not at all, insist Liebenberg and Scharf. To retain women lawyers, “firms should implement flex-time and part-time work that has a pathway,” says Liebenberg. “Women want to see firms invest in them.”

What women don’t need are dead-end “mommy tracks,” Scharf warns. Moreover, firms need to be more receptive to lawyers who take breaks from practice, she adds. “At most firms, if you stop working for one, two or three years, it’s like you died. But careers are much longer—at least 30 years—and firms need to understand careers have a lengthy course.”

Scharf and Liebenberg are proposing a major overhaul. “It’s a great time to think about compensation and performance evaluations,” says Liebenberg. “Women are really stressed that their performance during the pandemic will define them. Firms need to rethink compensation, how origination works and encourage team work. Siloing lawyers is not a good thing.”

“It’s a good time for firms to think about the kind of culture they want and what it means to have diversity,” sums up Scharf. “It’s also a good time to rethink practice and policies.”

So to get women to stay, firms need to create flex-time and part-time options that aren’t mommy tracks, allow lawyers who drop out to return to the fold, revamp the compensation system, and make the evaluation process fairer. And, oh, let’s fix the culture too because culture is always fundamental.

Goodness, that’s quite a list. Not to be a killjoy, but is Big Law ready to do all that to keep women in the game?

Well, says Scharf, “you don’t have to do everything at once.”