Gender, Choice and Commitment

Women Solicitors in England and Wales and the Struggle for Equal Status

Hilary Sommerlad, Peter Sanderson

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9781138385030
• eBook ISBN: 9780429763724
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1998, reissued here with a new preface, this volume is the first full-length discussion of women's experiences in the solicitors' profession in the UK. It provides an account which is grounded in historical research and a contemporary research study. The authors explore this material to analyze both women's own experiences and the mainstream culture and structure of the profession. Following a treatment of the struggle against the formal exclusionary barriers to women's entry to the profession, this book then seeks to identify the informal obstacles which were subsequently erected to women's participation and career progression, and examine their persistence, in a modified form, into the contemporary era. The analysis draws on perspectives from feminist jurisprudence to the sociology of the professions to shed light on the processes which support women's continued subordination in employment as lawyers.

1 Introduction

My own wife is a personal injury solicitor in a large firm and she has worked in other firms. She has never experienced discrimination. In her last firm she was offered a full equity partnership but turned it down for domestic reasons. You may not like it, but I think it is a fact that many women solicitors do, in fact, put their families before their careers.

(Letter Martin Mears, President of the Law Society to Clare McGlynn and Caroline Craham, cited in Smerin, Law Society Gazette, 25 October 1995, p.2)

We must stop presenting women as ‘victims’ or as an undifferentiated mass of mindless zombies whose every move is determined by other factors and social forces... Women are responsible adults, who make real choices and are the authors and agents of their own lives. Some women choose to be home-centred, with work a secondary activity. Some women choose to be career centred, with domestic activities as a secondary consideration. Female heterogeneity is a result of the choices women make, reflecting not just different but conflicting preferences between two qualitatively different life courses.

(Hakim, 1996a; 186-7)

This book is concerned with understanding the experiences of women solicitors in private practice in the UK. The last fifteen years have seen a very rapid growth in the numbers of women qualifying as solicitors, and obtaining employment at junior levels of private practice. However, as in other professions such as medicine and accountancy, the upper reaches of private practice remain dominated by men (Sommerlad, 1994; Skordaki, 1996; Helena Kennedy, 1992; Allen, 1991; Jackson, 1997): the structural changes which facilitated, and also stemmed from, the increased participation of women, do not seem to have led to this participation being on equal terms. Why this should be the case is a matter of controversy.

As Anne Witz has argued, there is a lengthy history of commentators attributing women’s failure to reach the top echelons of the professions to problems of reconciling typically male career patterns with family life (1992, p.2; Fogarty, Allen and Walters, 1981; Davies and Rosser, 1987). Even explicitly feminist work struggles to escape from the ideology that it is perverse for women to expect to be able to combine a career with parenthood, and that therefore the ‘penalties’ that they experience are the consequences of their own choices rather than the construction of motherhood and the prevailing social arrangements for child care and employment (an ideology which we will describe in shorthand as ‘voluntarist’). Moreover, there has recently been a renewed emphasis on this notion that women’s own choices and preferences, rather than structural inhibitions or the direct discriminatory behaviour of individuals, are the principal influence on their career destiny. The quotations which head this chapter represent the strength of the voluntarist perspective, both in the legal profession itself, and in academic comment on the labour market. Consequently, any work examining the relationship between gender and the labour market must confront this issue of choice, and the many questions it raises. How free are women in reality to make choices in the labour market as it is currently structured? When they make their choices, to what extent are they influenced by the general social sense of what is and is not possible? To what degree are their career decisions shaped by their experiences of employers’ attitudes and practices? To what extent are choices available to exceptional individuals, but not to women collectively? Finally, perhaps the most fundamental question we should ask is why the issue continues to be constructed as a ‘women’s problem’, where the central issue is women’s right to participate in the workplace, rather than the difficulty of equalising care responsibilities in the home (see Liff, 1997, p.558; Lewis and Lewis, 1996).

This book is concerned to set the taken for granted conception of how women make choices within the context of the complex network of social relationships that make up the labour market, and, in particular, to examine the extent to which the structure of gender relations provide a delimited set of parameters within which choices can be made. This issue is particularly significant in a profession like law. Firstly this is because it might appear that, as a result of extensive training and the high status of the profession, women lawyers possess an exceptional degree of authority and power in terms of their decision-making. Secondly, because law, and hence legal practitioners, play a major part in constructing social reality, and, in particular, gender identities and roles. As Bourdieu argues: ‘Law is thequintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular’ (1987, p.838).

We are equally concerned with the idea of commitment. Where it is clear that women are equal to men in terms of ability, questions are often posed about whether they are equal in terms of their ‘commitment to work’ (Hakim, 1995; 1996). We shall argue that the concept of commitment is itself gendered. It is predicated on a naturalised view of the independence of the public and private spheres, and the role of men and women in each. Thus studies of commitment which look at the hours which men and women are prepared to work, and the extent to which their desire to work is dependent on financial reward, rarely if ever use the data to illuminate the question of men’s commitment to their home lives, and the distinct work which is undertaken in the private sphere. It is similarly rare for such studies to question to what it is that women and men are expected to be committed at work, and the precise way in which such commitment may be measured. It is our contention that commitment is an ill-defined, and ideological concept. Women lawyers are not in fact facing the same kind of job that men lawyers are, and employer perspectives on the respective potential and career trajectories of women and men are starkly different. Furthermore, we will be arguing that in common with other occupations, expectations of performance in law work are not only profoundly gendered, but also sexualised. Women’s perceived sexuality can be a management resource, and is consequently a significant element in the degree to which they are regarded as suitable for some specific types of work and unsuitable for others. However, the gendered aspects of law work tend to be implicit, and it may be that most women only become aware of the baggage that goes along with the job after some time in post.

The fact that there is a variety of types of work that solicitors may engage in is particularly significant in deciphering women’s positions in the profession. The legal labour market is highly differentiated. Although all lawyers are members of the same profession to the extent that they are products of the same system of legal education and belong to the same self-regulating association, they practise in very different arenas, where the character of their business, their associations with clients and other fellow professionals determine the prevalence of specific cultures (Collier, 1998; Cain and Harrington, 1994). So, for example, an insolvency lawyer and a criminal legal aid practitioner may each have more in common in terms culture with their respective clients than they have with each other. This extreme differentiation has created strains within the nominally unitary profession, but has also provided the framework for a complex patterning of women’s experience, so that success is more possible for them in some areas than others. Indeed it is the case that it may be easier for a certain type of woman to succeed in some areas, at certain stages of their career, than a man.

Is it therefore valid to attempt any generalisation about the experience of women solicitors, especially given the criticism that studies which take gender as their primary focus are thereby inevitably characterising women as a homogeneous category (for instance, see Morgan, 1984; Menkel-Meadow, 1989; Barrett, 1987; Spelman, 1988; Bacchi, 1996)?¹ Specifically, Bottero has argued that ‘The problem with the literature on women’s entry to male-dominated professions is that by stressing continuity, and focusing on aggregate gender differences, the complexity and specificity of women’s employment situation tends to be lost’ (1992, p.332). This charge may appear especially pertinent to this study since we not only seek to generalise about the position of women, but are also concerned with the historical legacy of professional culture. This does not mean that we do not recognise the dangers of working within a framework which appears to treat as unproblematic the categories of ‘women’ - and indeed ‘men’ (Collier, 1998). Our data clearly revealed the need to distinguish between for instance, the experiences of our black and working class respondents and those of, say, middle class white women, as well as the differences generated by the various working environments (Dixon and Seron, 1995). Nevertheless, we contend that the results of both our research and those of other surveys (for instance, The Hansard Society, 1990, pp.43-51; Reynell, 1997; Sidaway, 1997; McGlynn and Graham, 1995; Ross, 1990) demonstrate that gender remains a principal determinant in the career trajectories of women solicitors, and, as we observed above, of the shape of legal practice. As Jackson has written, ‘gender has historically been constitutive of a certain group identity, and, since we cannot exist in a chronological vacuum, we need to acknowledge the significance of that history’ (1993, p.407). It is not only academic commentators who tend to reify gender. It is the profession (and of course mainstream society) which reifies it, and a focus on women solicitors as a category is therefore justified, if only on strategic grounds (Braidotti, 1993).

However, our claim to be able to generalise may be regarded as even more tenuous since this study draws particularly on data on women’s position in the larger, more commercially oriented firms, and refers less to the experience of women in, for example, the sector that has specialised in legal-aided work. This has been in part because the big commercial firms are the largest employers of women, and yet are also viewed as particularly ‘macho’ and hostile to women returners (that is women who return to work following a career break, generally a maternity leave). It is also because such firms may be viewed as paradigmatic of private practice culture. Whilst we are therefore aware that some of the discussion may be less relevant to some legal workplaces than to others, a particular focus on such firms is warranted because of the influence they have as the professional elite² and because they are in the vanguard of professional restructuring. Moreover, both our data and that of the other surveys cited above indicates the existence of many commonalities between women lawyers across the spectrum of practices. In particular, they face discrimination in terms of pay, and this begins at the very start of their careers (Moorhead, 1997), and they also tend to share with each other the common destiny that their career trajectory will be flatter than a man’s: even if they manage to climb on to the same incline at the beginning of a career, they will be likely to fall off (or be pushed) before that career has progressed to a pinnacle.

This complex relationship between women and the law jobs they seek to obtain and maintain is further overlaid by the long waves of economic prosperity and decline which radically affect the shape of the profession, both in terms of its overall size, and in terms of its internal composition. For example, whilst the last recession brought an end to the period of rapid general expansion, and a sharp decline in areas like commercial conveyancing, it saw an increase in insolvency practice and in criminal legal aid work (Goriely, 1996). Our research indicates that the position of women in the profession is intimately linked to these ‘long waves’ in a fashion that tends to support theories of the existence of a ‘segmented’ labour market. Their entry into the profession in large numbers in the UK, as in practice in North America and Australia, coincided with a period of unparalleled expansion in law work, and, in many cases, they appear to have been the first victims of decline.

As we have already noted, women’s careers are also systematically influenced by life course factors in a way not experienced by men. Some commentators, notably ‘human capital’ and ‘preference’ theorists, tend to attribute women’s position in the labour market in general almost entirely to these factors. They endorse the ‘natural’ inflexibility of the labour market which refuses to accommodate carers on equal terms, and the ‘natural’ fact that few men in full-time employment wish to, or are able to, demonstrate a substantial commitment to the private realm. This approach has been criticised, and the point has been frequently made that ‘men’s work’ in the public sphere is heavily dependent on, indeed advances as a result of, women’s work in the ‘private’ sphere: this domestic work, which facilitates an enhanced involvement in ‘public’ work, has been described as ‘social capital’ (Seron and Ferris, 1995), and access to this servicing is asymmetrically distributed between genders. However the relationship between the two spheres is more complex, and related to the construction of masculinity and femininity. For instance, we would argue, along with many recent writers on organisational culture (Hearn and Parkin, 1995; Sheppard, 1989) that sexuality, as well as gender, heightens the significance of motherhood as a factor in women’s labour market destiny.

In attempting to develop an understanding of the relationship between women and their labour market, we have had to confront the resilience of the human capital approach to gender differences in career trajectories, exemplified by Caplow (1954), and, latterly, Becker (1991). In particular we contest the idea that individuals are judged according to a neutral evaluation of the properties and attributes they possess, or indeed that these attributes or skills can be and are objectively evaluated (see Markus, 1987), and that a change in their currency value is a function of technical obsolescence. In fact, desirable attributes are socially constructed, and mirror a hierarchical ordering prevalent in society outside the closed world of the law: their construction is drawn from and in turn validates judgements about the type of person fitted for certain work. In this process people are privileged on the basis of their class, gender and ethnic history. In discussing these issues, we have used the term cultural capital to refer to these socially validated attributes (Bourdieu, 1987, 1991; Hagan and Kay, 1995), and to understand the way in which women are articulated into the legal labour market so that skills and attributes which they believe to be significant are devalued.

A further aspect of private practice which we explore is the cultural milieu which shapes the experiences of women lawyers. This professionalculture is the product of a lengthy historical process: a project of ‘professionalisation’ well documented in specialist literature, the goal of which was monopoly control over the provision of certain services. In the case of the exclusion of women from the provision of these services, the ideological justification was drawn from the character of the Common Law itself,³ so there is an intimate link between the character and practice of law in the UK, the legal professional project and ‘social closure’ against women. The topic deserves a dedicated book in itself, but we have sketched an outline which provides a context for the contemporary data.

Finally, it is worth stressing in this brief introduction to the issues thrown up by our research, the extent to which many of our women respondents have frequently been baffled, angered and shocked by their experiences.⁴ We believe this to be in part a function of the power and prevalence of the belief that modern society and its institutions are characterised by formal, rational procedures, and objective decisionmaking, and the resulting confusion when experience proves otherwise. This is reinforced by the dominance of human capital theory in vernacular understanding of the labour market, and the emphasis in public policy on formal qualifications and accreditation. This image of modernity and rationality is however being increasingly challenged, and the significance of the personalist relationships which underpin power hierarchies and key decision-making processes is being recognised. These personalist networks reinforce male dominance and subordinate women, since many of them are maintained through nominally private activities and institutions which either formally exclude women, or make it difficult for them to feel at home. The significance of these institutions and processes often only becomes apparent to women over time. For similar reasons, this is a difficult area to research: as Catherine Hakim remarks, ‘some of the most important processes that contribute to greater career success among men than women are invisible, not just unmeasured but unmeasurable’ (1996, p. 183). We have explored this area through interviews, but again it begs for further systematic research.

The underlying issue which we are seeking to address through this book is the extent to which women and men are able to exercise real choice over the way in which they work and construct their careers. For there is no doubt that the template of the lawyer into which both genders have to fit constricts men as well as women. Male respondents as well as female perceived the working conditions as a yoke, and resented the damage to their relationships with their family, though there was a greater tendency amongst men to accept some of the burdensome terms as simply given.

The research project

A full description of the methods used in this research, including details of sampling procedures, sample sizes, response rates and analytical techniques, is included in the Appendix. At this point, we would simply like to introduce the origins and rationale of the project, and trace the development from an initially quite limited focus, to the broader enquiry which we report here.

In 1990, the Law Society and a local Training and Enterprise Council commissioned some research from the then Leeds Polytechnic into the kind of training necessary to support the re-entry of women solicitors into the profession. This work was undertaken by one of the authors in conjunction with a research assistant, and the project subsequently reported to the Law Society (Sommerlad and Allaker, 1991). The project took the opportunity offered by a limited regional study to survey the women on the records of two local Law Societies, investigate their intentions in relation to taking a career break, the deterrents that they might confront, or that had confronted them on return, their preferences in relation to training for return, and the conditions under which they would like to return.

The project had attracted the interest of the Law Society because of the threatened shortage of solicitors in the late 1980’s consequent on the commercial property boom. It was therefore premised on the assumption that women solicitors were, and were regarded as, a valuable human resource which employers would want to attract back to the profession, and that the main problem was how to ease their re-entry. It was clear to the principal researcher that befor...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Tables
• Acknowledgements
• List of Abbreviations
• Cases Cited
• Statutes
• 1 Introduction
• 2 Gender and the Legal Labour Market
• 3 ‘The Common Sense of Mankind’: the Common Law and the Historical Exclusion of Women from the Legal Profession
• 4 ‘Bonds of Trust’: From Informal Exclusion to Full Participation?
• 5 The Men’s Room: Cultural Capital and the Fraternal Contract
• 6 ‘She’s All Right for a Bird’: The Accommodation of Women
• 7 The Meaning of the Career Break: Human Capital, Cultural Capital, Social Capital
• 8 Conclusion
• Appendix: A Description and Discussion of Methods
• Bibliography
• Index