Chill wind still buffets women lawyers

When Ethel Benjamin enrolled for a law degree at Otago University in 1893 she did not know whether she would ever be allowed to practise law.

At the time New Zealand women were still some months away from getting the vote with men dominating every facet of the young colony. But despite this Ethel clung to the belief that “a colony so liberal as our own would not long tolerate such purely artificial barriers”.

“I therefore entered on my studies with a light heart, feeling sure that I should not long be debarred from the use of any degree I might obtain”.

In the event, her confidence was not misplaced and, thanks to the Female Law Practitioners Act of 1896, she became the first woman to enter the hallowed ranks of barristers and solicitors, practising law in Dunedin and then Wellington.

Since then, women have made an indelible mark on the legal profession with more than 50 per cent of law graduates now being female. Not only that, three of the four Heads of Bench are women as well as the Minister of Justice, suggesting that much has been achieved since the trailblazing days of Ethel Benjamin.

But in reality it has been a long, hard slog for women to get to where they are today and it is far from over. They are still conspicuous by their absence in the higher levels of the profession, as well as among those who take Silk with just 15 per cent of Queen’s Counsel (QCs) being women.

Chief Justice Dame Sian Elias was unavailable to speak with Law News, but in a 2008 speech to the Australian Women Lawyers’ conference she recalled how she went on the bench to “practise law” because she was not getting the instructions in cases she aspired to lead.

“And for those in practice, my impression is that they still feel the chill that buffeted Ethel Benjamin. Only those who cannot seem to attract work know how it gnaws at self-esteem. And for many able women, those are still the conditions under which they practice.

“It is not surprising that women in the legal profession continue to exhibit the restlessness shown by Ethel Benjamin. Her movements in and out of the profession, her attempts to regroup and change direction, are still familiar patterns today.”

So given Dame Sian’s concerns it is no wonder that various women’s legal groups around the country have been pressuring the political and legal hierarchy to remedy this situation.

The Auckland Women Lawyers’ Association (AWLA) for one has applied itself to the issue and last year it commissioned AUT University’s Gender & Diversity Research Group to investigate the reasons behind the scarcity of women partners in Auckland’s larger law firms. The project aimed to determine whether barriers to the advancement of women exist, or are perceived to exist, within large law firms.

Taking part in the study have been male and female practitioners and partners at 11 law firms – namely Bell Gully, Brookfields, Buddle Findlay, Chapman Tripp, DLA Phillips Fox, Hesketh Henry, Kensington Swan, Meredith Connell, Minter Ellison Rudd Watts, Russell McVeagh and Simpson Grierson. Participants took part in an anonymous survey as well as voluntary interviews in which they were questioned about their in-depth perceptions and experiences of working in a large law firm.

Additionally, AUT University undertook a review of worldwide literature on the topic in order to put the New Zealand findings in context. Not surprisingly, the results of all of this make for interesting reading and indicate that AWLA’s misgivings about gender imbalance in the legal profession are not unfounded.

Contractual obligations meant AWLA president Angela Hansen was not able to disclose the findings (formally released on 27 February 2014) to Law News at the time this publication went to press but she was able to give us a flavour of what they showed.

She noted there were some very interesting differences of opinion between legal staff in the law firms and the managing partners: “In many cases they had completely opposite views about what the issues relating to women lawyers are, and seemed to be talking at cross-purposes if I could put it that way.”

Ms Hansen says there is no doubt the firms have very good career structures but “they are not really meeting the needs of women nowadays”.

“The unfortunate reality is that your key years for advancing your career are in your 30s and today that seems to coincide when women are mostly likely to have children. So the effect of that is women end up having to compromise and a lot of them are saying that maybe it’s impossible to pursue a career and bring up a family,” she says.

Ms Hansen commented that maybe law firms need to start thinking about appointing more part-time partners in order to give women raising families a chance to enter the higher echelons of the profession. Asked whether the report found any evidence of an “old boy’s” network influencing legal appointments she
said: “That’s an interesting question. Yes and no apparently. The staff say yes but the partners say no.”

One of the first two women to become a QC and join the High Court bench shares some of Ms Hansen’s sentiments. Justice Lowell Goddard took Silk in 1988 along with her good friend Dame Sian Elias.

“When Sian and I became QCs I think it pole-axed a number of the men who saw it as some sort of affirmative action and sort of debasing the currency or some-such,” she told Law News.

“We were 38 at the time and I’m quite sure there were also people who were shocked at how young we were. But we had both been practising law since we were in our early 20s and had proved ourselves, so I think we had well and truly earned it.”

Justice Goddard says there was “a long drought” after 1988 with no other women taking Silk until 1995 when Judith Ablett-Kerr received the accolade. “There has been some momentum in more recent years but not a lot and the numbers are still skinny. I’m not a social scientist and don’t have all answers as to why this situation exists but it could be, in part, due to choices women
are making.”

“I see younger generations of women in the law like my daughter and others younger than her who would choose not to go on the bench because they have a different view on what really matters to them. They’ve had their children later so they have a more considered approach and they realise they’re balancing their family responsibilities with their careers and with their partners’ careers, and they seem to work it all out in a more balanced way,” she says.

Justice Goddard says women lawyers of her generation were not faced with the dilemma of raising young children and trying to climb the legal ladder.

“Sian and I were young when we had our children and most people did then. By the time we took Silk the children were at university and by the time we went on the bench they were well and truly adults – I mean my daughter was a practising lawyer by then,” she notes.

Justice Goddard says being on the High Court bench is a demanding experience for women and men who have school age children. She contends more could be done to strike a balance so that talented people are not deterred from seeking high office: “There are ways of doing more and what is currently being looked at are part-time Judges on the High Court bench. This will allow women to advance their careers and still have a work-life balance like women who are in their 40s with school-age children.”

However, she says women vying to become partners in big law firms may have a harder road to hoe.

“The reality with big law firms is that they are commercial operations and they are all trying to meet their fees targets so you are talking about a very commercial environment. It may well be harder for a woman to rise up through the ranks of a major law firm and become a partner than become a part-time Judge,” she suggests.

As one of the country’s newest female QCs Kate Davenport, who took Silk last year, believes some women are their own worst enemies when it comes to advancing their careers such as applying to become a QC.

“Yes, I do think so. Some people think they haven’t got it in them because they are not good enough and I can understand that. They are put off by the application process because it requires you to present a lot of your cases and talk a lot about your position in the profession, how you’re perceived and what you’ve done etc. And I think because of family commitments many women haven’t done the cases or feel that they don’t qualify on those grounds.”

Ms Davenport says despite being a lawyer for 30 years even she found the application process daunting: “You think twice about it because nobody wants to apply and then fail and yes, it is a daunting process trying to portray yourself in a way that shows your expertise and your commitment to the bar and your leadership and all those sorts of things. I actually found it quite difficult to do, not because I hadn’t done those things but found it difficult to write about them in a way that wasn’t embarrassing.”

So fear of failure and inborn diffidence may account in part for the disproportionately small number of female QCs if Ms Davenport is correct. But in her case she got lucky: “I’m very fortunate that I’m in a big set of chambers and there are lots of mentors who are helpful and encouraging. For me Sir Ian Barker was just fantastic. He read my application and was very helpful giving me great positive encouragement to make me do it.”

Other role models include Dame Sian Elias and Lowell Goddard. “As a relatively junior lawyer it was a big deal for me when they were appointed; suddenly I could see just what was possible,” she says.

Like others in this story Ms Davenport says it is very hard for a woman raising a family to get to the top of the legal profession.

“It’s a hard job and it’s stressful and it’s difficult to maintain a normal life let alone a family life when you are required to work as hard as you have to.

“My husband is a doctor and what strikes me about the difference between medicine and the law is that he works very hard all day but when he gets home at night the work stops. No one has told him that he needs to prepare a paper and hand it in, say on a Tuesday, unlike litigation where sometimes the hours in the day and the work to be done bear absolutely no resemblance to each other.”

So how has she changed in the relatively short period since taking Silk?

“Basically I’m still the same person but the label gives you a different or better type of work. I mean you can’t let yourself believe your own press. The minute you do that then you don’t do a good job so you have to do your best and not think you know all the answers because nobody has got all the answers.”

Clearly Ms Davenport QC is held in high regard by people in high places with Attorney-General Christopher Finlayson telling Law News that she was one of several “excellent candidates” that he appointed last year. He says the “most obvious reason” for the comparatively low number of women QC is that very few females apply.

“That fact doesn’t reflect the many very capable women at the bar in my opinion. I have been talking with a number of women in the profession to see what can be done to encourage more women to put themselves forward. I think the Bar Association and women lawyers groups have a responsibility to their members to ensure the best people are putting themselves forward for recognition.”

All of which should be of some comfort to barrister Karen Feint who is a member of NZLS’s Wellington branch “Women in Law” Committee. After making an Official Information Act request she was shocked to find that of the 116 barristers nationwide who applied to become QCs last year only 16 were women, with none from Wellington. And of the 26 who were ultimately successful in becoming Silks, just 4 were females.

Given that 36 per cent of barristers are women it is no wonder Ms Feint believes the time is long overdue to rectify the imbalance.

“Is it because there just aren’t that many senior women barristers out there or is there some truth to the adage that women won’t apply for something unless they believe they meet all the criteria, whereas men are more likely to be more confident about their own ability?” she asks.

“The reality is probably a complex combination of factors, but our sense was that to some extent it is true to say that women tend to be backwards about coming forwards and won’t apply unless they think they are well qualified whereas the perception is that men are more willing to take a punt.”

Despite her concerns about the gender imbalance Ms Feint says she “loves” being a barrister: “Going to the bar was the best thing I ever did. The fantastic part is that you have so much flexibility and can do whatever interests you professionally as well as work whatever hours suit with no budgets to worry about and no boss telling you what to do. This flexibility was really important, especially early on when my children were very young.”

Unlike Ms Feint and the other women who have appeared in this story Ethel Benjamin’s groundbreaking foray into law did not have a happy ending. She found herself frozen out from conventional work and resorted to placing advertisements for work in the Law Society newsletter.

Disillusioned and depressed, she eventually gave up law and opened a restaurant before turning her back on New Zealand and going to live in the United Kingdom where she died during World War II. Adding insult to injury is the fact that her harrowing story was largely ignored by the legal profession until the 1980s when Otago Women Lawyers championed her cause.

Note: Attorney General Chris Finlayson says an appointment round for Queen’s Counsel will take place this year. Applications close on March 14 2014 and it is expected that appointments will be made in May. For more information refer to
Law News Issue 2 (14 February 2014) or www.beehive.govt.nz.

Leave a comment

Contact Us
Phone 09 303 5270
Fax 09 309 3726
Email reception@adls.org.nz