Task force proposals could set back women lawyers in California

If you have been studying the news about the gender gap at all, you may have concluded that women lawyers get paid 75% of comparable male lawyers’ salary. The real number may shock you. According to biannual survey conducted by the legal consulting firm Major, Lindsey and Africa, women law partners face a whopping 53% gap in pay at top U.S. law firms, according to newly released data. Yes, 53%. Why the major gap? Billable rates, yearly receivables and the fact that women tend to practice in areas that are less lucrative than men such as labor and employment law.

This survey data is not alone: Women make up fewer than 35% of lawyers in U.S. law firms according to a 2017 report by Law360 and the New York Times. According to another a recent study by the American Bar Association, women lawyers of color were over eight times more likely than white men to report that they had been mistaken for janitorial staff, administrative staff or court personnel. This same study reported that 80% of white men, but only 63% of white women, 59% of men of color, and 53% of women of color reported that they had equal opportunities for high-quality assignments. Despite the fact that women have been graduating in equal numbers from law schools for decades, the percentage of women equity partners at major U.S. law firms has remained stagnant at around 21.5%.

The legal glass ceiling may have many cracks in it, but growth is glacial in its pace.

So what is the State Bar of California considering as a fix to this marketplace full of continued inequity? Unfortunately, three sweeping new programs have been revealed by the State Bar’s Task Force on Access Through Innovation of Legal Services, which will set back the efforts of women lawyers to gain income equality many decades. These changes include:

1. Creation of a new class of paralegal who can practice law in order to provide the public with lower legal rates;

2. Relaxation of the new Rules of Professional Conduct to allow the widespread use of “artificial intelligence” in the practice of law;

3. Ownership of law firms by nonlawyers to “encourage” the creation of “new systems” to drop the cost of legal representation.

Criticisms of these proposals are pilloried as “protectionist” and failing to recognize the benefits of technology. What has not been addressed by the task force, however, is a crucial element: The overwhelmingly negative and one-sided impact of these programs on women lawyers and lawyers with diverse background.

The reason is partly cultural and partly economic. A new class of “super-paralegal” will work as a barrier to entry of women lawyers into positions of power: Why hire a woman lawyer on the margins (returning from a period of time as a mother or caring for a family member, graduating from a less than top tier law school, or falling off the partner track for whatever reason) when you can hire a super-paralegal who can practice law for a third less?

For decades, the role of women in the law was limited to legal secretary. Witness the rarified heroics of Sandra Day O’Conner and Ruth Bader Ginsberg. Indeed, in the 1970s, the new “paralegal” position was created, but like legal secretaries, women paralegals still to this day vastly outnumber men — more than 80% of paralegals remain women and this figure has stagnated at between 10-15% for many years. The fact that women have been shunted for decades into roles behind men is undeniable — women have been nurses not doctors, therapists not psychiatrists, waitresses and not chefs, bookkeepers and not accountants. The new “lawyer-nonlawyer” is a hybrid that is designed to be low paying. It is a historical certainty that more women will be drawn into this career, and become unable to pull themselves up into law school thereafter.

In addition to cultural barriers, pure straightforward economic reasons demonstrate how these policies will result in disproportionate impacts on women lawyers. The stated purpose of creation of a nonlawyer-lawyer and increased AI “legal solutions” is to lower the cost of getting legal representation. Why hire a lawyer who makes $100,000 per year to engage in basic legal tasks such as discovery, court appearances and even one-day trials? These are the matters on which young lawyers cut their teeth, and small firms are already able to provide services at lower rates. Flooding this market with the distinct purpose of lowering rates is going to hurt women disproportionately simply under basic demographic and salary data.

Our experiences with the controversial “mommy track” demonstrate how these changes will hurt the progress of women lawyers in our profession. Whether through employment on a “non-partner track” status or via contract work following maternity leave, women lawyers often choose to sacrifice promotions and raises in exchange for being given more time to raise their children. These selections are often only to reduce 80-100 hour weeks down to 40 hour weeks. But a mommy track comes at a much higher economic cost to the woman — in taking this option, the choice is that a woman (or caregiver) relinquishes 21-33% of in lifetime earnings. See Jessica Kornberg, “Jumping on the Mommy Track: A Tax for Working Mothers” UCLA Women’s L.J. 187 (2008). This new “super paralegal” will entice and trap women into a newly created “mommy track” in which they may earn slightly more than a certified paralegal, but clearly never what a lawyer makes — that is the very purpose of the program!

There is simply no way of denying that the triple-threat of LLTs, increased AI and allowing nonlawyer (read, LegalZoom) ownership of law firms will decimate the salaries and jobs offered to women. Importantly, these massive revisions to the legal system are being pushed through at an incredibly fast clip — the State Bar was split apart as of 2018, the task force set up nearly immediately with its first meeting in December of 2018, the report promulgated in July of 2019, one little publicized public hearing earlier this month. Final public comments are due on Sept. 23. The State Bar is poised to vote on the proposals at its January 2020 meeting.

Attorneys who have dared to step up and ask for more studies regarding this intentional “disruption” have been pilloried on social media and in news articles as “protectionist,” as “lobbyists” and even as “greedy.” Proponents suggest that women lawyers will have the opportunity to “live up to their licenses” while this new class will expand opportunities. One proponent even suggested to the author that since women lawyers are more inclined to go in-house with corporations anyway, these changes won’t impact them at all.

On the day of my graduation from law school, my grandmother approached with a huge smile and tears in her eyes. An immigrant from Poland, she and my grandfather scraped and saved from his union job in Detroit to put five children through college. Their children and grandchildren included an engineer, a teacher and a medical doctor. As my grandmother smiled with tears in her eyes, the family now “had a lawyer.” I had found that “way up” that so many women in law school seek to obtain. There is no question that access to justice is a crucial part of our country and legal system. However, eviscerating the jobs and income of the very people who are actually providing low cost legal support in their communities is ill-advised without considerably more time, study and discussion. If the problem is access to justice, women lawyers and lawyers with diverse backgrounds are the solution, not the problem. 