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“Resistance by the Club” to the Feminization of the Legal Profession*

Published online by Cambridge University Press:  18 July 2014

Joan Brockman
Affiliation:
School of Criminology, Simon Fraser University

Abstract

This paper examines the growth in numbers of lawyers in Canada and British Columbia, and the attrition rates of members from the Law Society of British Columbia. It then reports on the results of a survey of former members of the Law Society of British Columbia which examines the reasons why these former members did not renew their memberships in the Law Society, their perceptions of gender bias in the legal profession in British Columbia, their suggestions for improving the legal profession, and some of the implications of such recommendations.

Résumé

Le présent article traite du nombre croissant d'avocat(e)s au Canada et en Colombie-Britannique ainsi que du taux d'attrition des membres du Barreau de la Colombie-Britannique. L'auteure y rapporte ensuite les résultats d'un sondage effectué auprès d'anciens membres du Barreau de la Colombie-Britannique. Ce sondage avait pour but d'examiner les raisons qui ont motivé ces anciens membres à ne pas renouveler leur adhésion au Barreau, leur perception du sexisme dans la profession juridique en Colombie-Britannique, les moyens qu'ils proposent en vue d'améliorer la profession juridique ainsi que quelques-unes des implications de ces propositions.

Type
Research Article
Copyright
Copyright © Canadian Law and Society Association 1992

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References

1. Menkel-Meadow, C., “Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers” in Abel, R. L. & Lewis, P. S. C., Lawyers in Society: Comparative Theories, (vol. 3) (Berkeley: University of California Press, 1989) 196–97Google Scholar.

2. See Smith, L., Stephenson, M. & Quijano, G., “The Legal Profession and Women: Finding Articles in British Columbia” (1973) 8 U.B.C. Law Rev. 137 at 139–40Google Scholar; Mullins, C., “Mabel Penery French” (1986) 44 The Advocate 676Google Scholar; Harvey, A. E. & Mullins, C., “A Short History of Russell & DuMoulin” (1989) 47 The Advocate 715 at 717Google Scholar and the British Columbia Court of Appeal's decision which found that she could not be admitted to the Bar because she was not apetson: Re Mabel French (1912) 1 D.L.R. 80Google Scholar. The letters and telegrams (available at the Archives in Victoria, British Columbia) which she exchanged with Oscar Bass, the Secretary of the Law Society, illustrate her efforts which preceded the court application. Following the court action, some very strong lobbying by Mabel Penery French and others resulted in the Attorney General introducing “An Act to Remove the Disability of Women so far as it relates to the Study and Practice of Law”. It received Royal Assent on 27 February 1912.

3. See Backhouse, C. B., “‘To Open the Way for Others of my Sex’: Clara Brett Martin's Career as Canada's First Woman Lawyer” (1985) 1 C.J.W.L. 1Google Scholar; Mossman, M. J., “‘Invisible’ Constraints on Lawyering and Leadership: The Case of Women Lawyers” (1988) 20 Ottawa L. Rev. 567Google Scholar; Mossman, M. J., “Women Lawyers in Twentieth Century Canada: Rethinking the Image of ‘Portia’” in Graycar, R., ed., Dissenting Opinions (North Sydney, NSW: Allen & Unwin, 1990)Google Scholar; Mossman, Mary Jane, “Portia's Progress: Women as Lawyers Reflections on Past and Future” (1988) 8 Windsor Y.B. Access Just. 252Google Scholar; Harvey, C., “Women in Law in Canada” (1970) 1 Man. L. J. 9Google Scholar; and Gillett, M., We Walked Very Warily: A History of Women at McGill (Montreal: Eden Press Women's Publication, 1981) at 304–14Google Scholar for the struggle in Quebec where women were not allowed to practice law until 1941.

4. See, e.g., Menkel-Meadow, supra, note 1 and citations contained therein; Morello, K. Berger, The Invisible Bar: The Woman Lawyer in America 1638 to the Present (New York: Random House, 1986)Google Scholar; Drachman, V. G., “‘My ‘Partner’ in Law and Life: Marriage in the Lives of Women Lawyers in Late 19th- and Early 20th-century America” (1989) 14 Law and Soc. Inquiry 221Google Scholar; Birks, M., Gentlemen of the Law (London: Stevens & Sons Limited, 1960) 270 at 276–78Google Scholar; Wiesbrot, D., “The Australian Legal Profession” in Abel, R. L. & Lewis, P. S. C., eds, Lawyers in Society: The Common Law World, vol. 1 (Berkeley: University of California Press, 1988) 244 at 270Google Scholar and citations; R. L. Abel, “Comparative Sociology of Legal Professions” in Abel & Lewis, supra, note 1, 80 at 116–119; Abel, R., American Lawyers (New York: Oxford University Press, 1989) at 9092Google Scholar.

5. See, e.g., Hagan, J., “The Gender Stratification of Income Inequality Among Lawyers” (1990) 68 Social Forces at 835CrossRefGoogle Scholar; Hagan, J., Huxter, M. & Parker, P., “Class Structure and Legal Practice: Inequality and Mobility Among Toronto Lawyers” (1988) 22 Law and Soc. 9, at 31–34, 42Google Scholar; Adam, B. D. & Lahey, K. A., “Professional Opportunities: A Survey of the Ontario Legal Profession” (1981) 59 Can. Bar Rev. 674 at 683Google Scholar; Fromm, D. and Webb, M., “The Work Experience of University of Alberta Law Graduates” (1985) 23 Alta L. Rev. 366 at 373Google Scholar; C. Menkel-Meadow, supra, note 1 at 211–18; Abel, supra, note 4 at 92–99. This difference remains when factors such as age, experience, hours worked, work force location, etc. are taken into account.

6. See, e.g., the following Task Force Reports from the United States: The First Year Report of the New Jersey Supreme Court Task Force on Women in the Courts (June 1984), reprinted in (1986) 9 Women's Rights Law Reporter 129Google Scholar; Report of the New York Task Force on Women in the Courts (April 1986)Google Scholar, reprinted in (19861987) 15 Fordham Urban Law Journal 1Google Scholar; The Final Report of the Rhode Island Committee on Women in the Courts (June 1987); Justice for Women: Nevada Supreme Court Gender Bias Task Force (1988); Maryland Special Joint Committee: Gender Bias in the Courts (May 1989); Minnesota Supreme Court Task Force for Gender Fairness in the Courts (June 1989), reprinted in (1989) 15 William Mitchell Law Review 827Google Scholar; Final Report of the Michigan Supreme Court Task Force on Gender Issues in the Courts (December 1989); Gender Bias Study of the Court System in Massachusetts (1989). Similar studies are presently being carried out in Canada: see Brockman, J., “Gender Bias in the Legal Profession: A Survey of Members of the Law Society of British Columbia” (1992) 17Google Scholar Queen's L. J. 1991, for a summary of activities in Canada.

7. Abramson, J. and Franklin, B., Where Are They Now: The Story of the Women of Harvard Law (New York: Doubleday & Co., 1986) C. 5Google Scholar; Dranoff, Linda Silver, “Women as Lawyers in Toronto” (1972) 10 Osgoode Hall L. J. 177 at 184188Google Scholar; Adam, B. D. & Baer, D. E., “The Social Mobility of Women and Men in the Ontario Legal Profession” (1984) 21 Can. Rev. Soc. Anth. 21 at 3740Google Scholar; Liefland, L., “Career Patterns of Male and Female Lawyers” (1986) Buffalo L. Rev. 601Google Scholar. (However, female respondents in this survey were more likely to have children than male respondents.); Stanford Law Project, “Law Firms and Lawyers with Children: An Empirical Analysis of Family/Work Conflict” (1982) 34 Stan. L. Rev. 1263CrossRefGoogle Scholar; Chambers, D. L., “Accommodation and Satisfaction: Women and Men Lawyers and the Balance of Work and Family” (1989) 14 Law and Soc. Inquiry 251CrossRefGoogle Scholar; Savarese, J., Keet, M. & Sutherland, K., Survey of Women Graduates From the College of Law (Saskatoon: University of Saskatchewan, Woman and the Law: 1988) at 10Google Scholar; Brockman, supra, note 6.

8. M. J. Mossman, “‘Invisible’ Constraints” supra, note 3 at 593–98 discusses invisible structural barriers and invisible barriers in ideas. She suggests that the former may require outside intervention to increase the numbers and role models for women, while the latter requires a restructuring of what it means to be a lawyer and a leader.

9. Kay, F., Transitions in the Ontario Legal Profession: A Survey of Lawyers Called to the Bar Between 1975 and 1990 (Ontario: A Report of the Law Society of Upper Canada, May 1991) at 98Google Scholar reports that while women represent 30% of those called in the past 15 years, “they represent 37% of those no longer practising law.” See also: Abel, American Lawyers, supra, note 4 at 92, 99; Frank, C., “Law Firm Sex Bias Mixed Bag: ‘Hishon’ Surveys” (1985) 71Google Scholar A.B.A. J. 25; Frank, C., “Leaving the Law” (1985) 71Google Scholar A.B.A. J. 34; Fromm, D. & Webb, M., “A Question of Equality: A Comparative Study of the 1975 to 1980 Law Graduates from the University of Alberta” (September 1984), 81Google Scholar; Angel, M., “Women in Legal Education: What It's Like to be Part of a Perpetual First Wave or the Case of the Disappearing Women” (1988) 61 Temple Law Quarterly 799Google Scholar.

10. Fleming, J., “His Brilliant Career, Part 2” in Report on Business (May 1990) 29Google Scholar.

11. Fleming, ibid, at 30.

12. Arron, D. L., Running From the Law: Why Good Lawyers are Getting Out of the Legal Profession (Seattle: Niche Press, 1989)Google Scholar.

13. The titles to her chapters are: “Prison Unrest,” “The Scene of the Crime,” “The Runner's Profile,” “Up Against the Wall,” “Making the Break,” “Assuming a New Identity,” “No Remorse,” “Coping With the Law,” and “Rehabilitating the System.”

14. Arron, supra, note 12 at 67.

15. The figures are from several reports written by K. Marshall, an analyst with Statistics Canada. See Marshall, Katherine, Who are the Professional Women?, (Canada: Statistics Canada, 1981, Catalogue 99951)Google Scholar; Marshall, K., “Women in Male Dominated Professions” in Canadian Social Trends (Canada: Statistics Canada, 1987) 7Google Scholar; Marshall, K., “Women in Professional Occupations: Progress in the 1980s” Canadian Social Trends (Canada: Statistics Canada, 1989) 13Google Scholar. In calculating the number of lawyers, Statistics Canada includes notaries in Quebec and British Columbia. See Manpower and Immigration Canada, Canadian Classification and Dictionary of Occupations vol. 2 (1971) 80Google Scholar; Statistics Canada, Standard Occupational Classification (1980) Catalogue No. 12-565E at 79Google Scholar. The classification scheme is concerned with the kind of work people do, and notaries in British Columbia and Quebec perform some of the tasks reserved for lawyers in other provinces. However, notaries in British Columbia do not graduate from a law school as do the notaries in Quebec; rather, up until 1988 they graduated from a six-month correspondence course. The correspondence course was expanded somewhat in 1988. See Appendix F in Burnyeat, G. D. et al. The Proposed Expansion of Notaries' Practice: A Response from the Notaries Committee of the Law Society of British Columbia (25 September 1990)Google Scholar. The numbers in Table 1 include “all persons who were employed, unemployed and not in the labour force and who worked at any time since January 1970 or January 1980, respectively” for the 1971 and 1981 statistics. See Marshall, K., Who are the Professional Women? at 18Google Scholar.

16. The membership fee in British Columbia for 1991 was $876.35 (less for junior members). This fee does not include liability insurance, which is required in order to practise law.

17. It is not a simple task to arrive at what would be an ideal proportion of women in the legal profession. Today, women make up over half the Canadian population and 44% of the labour force (The Report of the Task Force on Barriers to Women in the Public Service, Beneath the Veneer vol. 1 (Ottawa: Canadian Government Publishing Centre, 1990) at 11Google Scholar.) The legal profession still “qualifies” as a male-dominated one according to Statistics Canada's criterion of 65% or more of men. (See Marshall, “Women in Male Dominated Professions”, supra, note 15 at 7.) This figure was arrived at in 1971 when women made up 35% of the work force. Using an analogous criterion today, that is, that “workers should be distributed equally throughout the occupations in relation to their representation in the work-force” (Marshall, Who are the Professional Women?, supra, note 15 at 16), a male dominated profession is one in which men make up over 56% of the profession. The Task Force on Barriers to Women in the Legal Profession at 13 suggests that “within the 1990s women may become the majority in the labour force.”

18. Prior to 1976, women made up over 10% in the following years: 1922 (10.3%), 1925 (11.1%), 1927(20.0%), 1938(15.0%), 1943(11.1%), 1944 (25.0%) and 1947(12.9%).

19. Bulletin, Benchers', “New Committee Studies Women in the Profession” (June 1989) 5Google Scholar. The newly created Subcommittee on Women in the Legal Profession also expressed concern that “women who have been called less than ten years are ceasing their membership at a significantly higher rate than men.”

20. This figure is from the printout for this study which was generated on 28 July 1989. It is not exactly comparable to the figures used in the Benchers' Bulletin.

21. This is a quote from one of the respondents, who described retiring from the practice of law like “dying and going to heaven.” He added: “Free at last, free at last, thank God Almighty, I'm free at last.”

22. Former members who had retired, made only occasional appearances in British Columbia courts, had been appointed to the bench, were deceased, disbarred or had resigned due to disciplinary problems were removed from the original list of 331. Questionnaires were then mailed out to 115 women and 202 men.

23. When questionnaires were returned to the Law Society, the receptionist used the telephone book to re-address the envelopes, if she could find an address. Some of these were again returned without reaching their destination. In the end, 74 questionnaires (23% of the original list) were returned to the Law Society without reaching their destination. Four respondents returned the questionnaire indicating that they were members of the Law Society. This reduced the number of possible contacts with former members to 239. Of the 239 possible contacts, 102 questionnaires were returned for an effective response rate of 43%. The response rates for women and men is approximate because two of the respondents did not indicate their sex and the four who indicated that they were members were not asked to indicate their sex. There was also one envelope returned without the name of the former member being noted.

24. Although those who were known to be retired were eliminated from the mailing list, there were still seven respondents (all men) who were retired. These seven respondents are excluded from some of the Tables.

25. This conclusion would be consistent with impressionistic evidence. Mossman, “Portia's Progress” supra, note 3 at 256 writes, “impressionistic evidence suggests that women who became lawyers in earlier generations made clear choices between marriage and family on one hand or the practice of law on the other.”

26. Some of the homemakers checked both “homemaker” and “unemployed” and their responses were coded as “homemaker.”

27. Contract positions are used by governments (and universities) to exploit a cheap labour force, largely composed of women, by not hiring full-time, permanent employees. Employee benefits and increased wages for experience do not have to be paid.

28. This is confirmed by the recently released Task Force on Barriers to Women in the Public Service, supra, note 17. The Task Force uses the term “secondary work force” to describe part-time and short-term contracts that have neither job security nor benefits. Half of the women in the Scientific and Professional Category (which includes lawyers) are on terms of less than six months (Task Force at 85). Unfortunately the Task Force does not report the percentage of men on short-term contracts. The Task Force refers to the discrepancy between men and women in term-employment as “particularly severe and increasing in the Scientific and Professional, Technical and Operational categories” (at 85–86). The Public Service Commission is of the view that “it should be a cause for concern that at least some of the apparent progress in employment equity in recent years may have been achieved at the expense of employment security” (quoted in the Task Force at 86). Similar problems have been identified at universities. See for example, Backhouse, C. B., Women Faculty at UWO: Reflections on the Employment Equity Awards (London, Ont.: University of Western Ontario, 1988)Google Scholar and Backhouse, C. B. et al. , The Chilly Climate for Women at UWO: Postscript to the Backhouse Report (London, Ont.: University of Western Ontario, 1989)Google Scholar.

29. “Involuntary part-time employment—where workers would have preferred full-time jobs if they could have found them—has been increasing … and now accounts for 24 per cent of all part-time employment. Nearly half of all part-time jobs created since 1981 have been classified as “involuntary” part-time … [T]he overwhelming majority are either young or female (or both)”. Economic Council of Canada, Good Jobs, Bad Jobs (March 1990)Google Scholar as quoted in the Task Force on Barriers to Women, supra, note 17 at 9.

30. The Table reproduces the entire range of responses. In order to summarize the results, the percentages in the text refer to collapsed categories. In comparing women and men, responses 1–3 were collapsed in order to arrive at some general comments about relevance. It could be argued that any response other than “7” meant that the factor had some relevance. However, when making general comments as to how many former members found the factors to be relevant in their decision to leave the Law Society, the number of respondents who indicated 1–3 is used. When women and men are compared in terms of intensity, the proportion who checked “1” is used. The percentage of women and men who circled “7” for “not relevant at all” is also noted. Readers are encouraged to examine the Table for greater detail, or to make alternative comparisons.

31. See Kay, Transitions, supra, note 9 at 69. Figures from the Ontario survey give some general indication as to why members left the profession in Ontario as compared to British Columbia; however, it should be kept in mind that the Ontario questionnaire asked: “If you have left the profession of law and do not plan to return to the practice of law in the near future, why is this? Rank top 3 with “1” as most important reason.” See question 18 in Appendix A for the “comparative” question.

32. Ibid. at 69.

33. Ibid. at 69.

34. Ibid. at 69.

35. Ibid. at 69.

36. Ibid. at 69.

37. Ibid. at 69.

38. New Jersey Task Force, supra, note 6 at 8.

39. In a 1990 survey of members of the Law Society of British Columbia, 97.5% of the women and 83.4% of the men were of the view that there was some bias or discrimination against women in the legal profession. See J. Brockman, “Gender Bias,” supra, note 6 at 100.

40. In the survey of members of the Law Society of British Columbia, 83.8% of the women and 64.7% of the men were of the view that there was no bias or discrimination against men in the legal profession, ibid. at 101.

41. In a 1990 survey of members of the Law Society of British Columbia, 75.5% of the women and 43.7% of the men identified “career advancement” as a form of discrimination against women in the legal profession, ibid. at 104.

42. In the members survey, 63.4% of the women and 32.1% of the men identified “access to partnership” as a form of discrimination against women, ibid. at 105.

43. In the members' survey, 15.1%of the women and 33.8% of the men thought there was some form of bias or discrimination against men in the legal profession, ibid. at 101.

44. At present, retired members pay a $50 annual fee.

45. Law Society Rules, Rule 403.

46. Subcommittee on Women in the Legal Profession, Women in the Legal Profession (Vancouver: Law Society of British Columbia, September 1991). Recommendations 9 and 10 at 1920Google Scholar.

47. Vogt, Leona, From Law School to Career: Where Do Graduates Go and What Do They Do? (Cambridge: Harvard Law School, 1986)Google Scholar who studied the career patterns of Harvard Law School graduates, classified pregnancy and child rearing as personal.

48. Drachman, supra, note 4.

49. Schafran, L. Hecht, “Eve, Mary, Superwoman: How Stereotypes About Women Influence Judges” (1985) 24 Judges' J. 12Google Scholar.

50. Drachman, supra, note 4 at 231 quoting the opinion of one member of the Equity Club in 1888. The Equity Club was set up by women lawyers and law students at the University of Michigan. It was a national correspondence club which required its members, once a year, to share their thoughts and experiences on practising law.

51. Drachman, supra, note 4 at 245 quoting a response in a questionnaire, 1920.

52. Ibid. at 232.

53. Ibid. at 246–47.

54. Equity Club member (1889) quoted in ibid. at 234–35.

55. Quoted in ibid. at 232.

56. One woman lawyer I know recalls her mother telling her she could have a career or marriage, not both. Micheline Masse, a 51-year-old stock-sleuth in Montreal, recalls: “When my father learned that I was to marry, he could not accept that his daughter would work and be married. So he would not allow me to work for him [in his law firm] or even to study for a law degree as a married woman.” In Beeby, D., “Stock-Sleuth Makes Old Bonds Pay” in Vancouver Sun (14 May 1990) at D4Google Scholar. Savarese et al., supra, note 7 at 10 report that 33% of their sample felt that it was not very realistic or they did not know if it was realistic to combine the two roles of parenting and lawyering. They did not ask about combining marriage and lawyering.

57. In a study done by the Vancouver Association of Women and the Law (VAWL), “Progress and Procrastination: Maternity Benefits For Lawyers in Vancouver” (Vancouver: 1987) by Stanley, G., and edited and supervised by Watters, F. R.Google Scholar, 25% of the women lawyers interviewed had put off having children because of their work.

58. See Savarese et al., supra, note 7. In the VAWL study, ibid., 57% of the women interviewed said they would consider terminating their employment if it interfered with childrearing.

59. Hockschild, A. Russell, The Second Shift: The Working Parent and The Revolution at Home (New York: Viking, 1989)Google Scholar.

60. Three of the men who worked full-time did not answer this question. An illustration of attitudes which were (perhaps) formerly prevalent is the response of one retired respondent, who reacted to this question about the number of hours spent on household chores, by inquiring in the margin whether the question was only “for ladies?”.

61. Drachman, supra, note 4 at 250.

62. This may be a function of the fact that there was a forum in which these women could discuss issues of concern. The Equity Club was formed in 1887. It “was open to all women law students, law school graduates and women practitioners. Requirements for membership were simple: a letter written yearly sharing one's experiences or thoughts on women in law and an annual fee of two dollars… Many members were remarkably candid and open in their correspondence,” ibid. at 230.

63. Savarese et al., supra, note 7 at 35. Others expressed concern that women might appear as complainers. The fear of an anti-women “backlash” was best dealt with by doing “my job well and by doing so, demonstrate that any discrimination is not justified” (p. 37).

64. This was a point made by Jennifer Bankier, professor of law at Dalhousie University, at the Learned Societies Conference in Victoria, British Columbia. She asked us to imagine all of the things we would not have to do if we had a “wife” in the tradition that most male lawyers had in the past.

65. Abella, R. Silberman, “Women in the Legal Profession” (1988) 12 L.S.U.C. Gazette 315 at 319Google Scholar.

66. John Hagan asks: “What does it mean that gender discrimination is practised so blatantly in a profession that is linked so closely to the value placed in democratic societies on equal treatment?” in Hagan, supra, note 5 at 850.

67. See, e.g., Brockman, J., Evans, D. & Reid, K., “Feminist Perspectives for the Study of Gender Bias in the Legal Profession” (1991) 5:1C.J.W.L. at 37Google Scholar.

68. Hagan, supra, note 5 at 849.

69. Recently, organizations have developed harassment policies which deal with all forms of harassment: Comment by Professor J. Osborne, Simon Fraser's Harassment Policy Coordinator, Simon Fraser Week (7 March 1991) at 2–3.

70. Defined in section 2 of the Legal Profession Act, S.B.C. 1987, c. 25 as “any matter, conduct or thing that is deemed, in the judgement of the benchers or discipline committee to be contrary to the best interests of the public or the legal profession, or to harm the standing of the legal profession.”

71. This was suggested by the Working Party on Women's Careers for the Law Society of England (1989). The lack of active self-surveillance is viewed as one of the major flaws to self-regulation. See the discussion in Brockman, Jo. and McEwen, C., “Self Regulation in the Legal Profession: Funnel In, Funnel Out, or Funnel Away?” (1990) 5 C. J. L. S. 1CrossRefGoogle Scholar.

72. Subcommittee, supra, note 47 at 37.