There is growing focus on the disparity between women and men in lead counsel roles. A new study was released by the New York State Bar Association that affirms this fact but also found that the rate of inequality increases as the complexity of the cases increase. This is important because generally these cases are the most lucrative cases. The study is entitled If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in the ADR. The report found that women hold lead counsel roles only around 25% of the time but in cases with five or more parties it drops to 19.5%. The survey conducted by the task force found the following:
- Female attorneys represented just 25.2% of the attorneys appearing in commercial and criminal cases in courtrooms across New York.
- Female attorneys accounted for 24.9% of lead counsel roles and 27.6% of additional counsel roles.
- The most striking disparity in women’s participation appeared in complex commercial cases: women’s representation as lead counsel shrank from 31.6% in one-party cases to 26.4% in two-party cases to 24.8% in three-to-four-party cases and to 19.5% in cases involving five or more parties. In short, the more complex the case, the less likely that a woman appeared as lead counsel.
The report went on to say the “[o]ne bright spot is public interest law (mainly criminal matters), where female lawyers accounted for 38.2% of lead counsel and 30.9% of attorneys overall. However, in private practice (including both civil and criminal matters), female lawyers only accounted for 19.4% of lead counsel.
This task force report is not the first time that the gender gap between women and men in lead counsel roles has been reported. In 2015 the ABA Commission on Women in the Profession issued a report titled First Chairs at Trial: More Women Need Seats at the Table. We had posted about the ABA report here. The New York State Bar Association recommended many ways for the judiciary and legal community to focus on the gender gap and encourage change. Although I agree that it is important for the legal community to become more cognizant about this disparity, I don’t believe simply encouraging change is the real solution to the problem.
I believe a significant factor in the gender gap is reflected in the drop of women in lead counsel roles in public interest cases from 38.2% to 19.4% in private cases. This highlights the blaring problem that women face in the private sector relating to getting business. If we continue to rely on others to provide us lead counsel roles, from the judiciary to male partners, these stats will remain stagnant like they have for years. The general rule in private practice is that the lawyer who originates the business controls lead counsel and first chair roles. The answer to equalizing this disparity is women focusing on business development. This is the real solution to turning these stats on their head.