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Bar Journal - Spring 2005

Gender Equality in the New Hampshire Courts and Legal Profession – A Survey

INTRODUCTION

The 2004 Gender Equality in Courts Survey was created by the New Hampshire Bar Association Committee on Gender Equality in the spring of 2004. The purpose of the survey was to find out whether gender issues existed in the court system, among Bar Association membership and between attorneys and clients. If gender issues did exist, the survey would also assist the Committee in determining how prevalent the issues were in the hope of using the survey results to assist the Bar Association in finding methods to resolve gender issues and inequality in the practice of law in New Hampshire.

The survey was sent out electronically via e-mail to all Bar members who had listed an e-mail address with the Bar Association. Not all survey participants responded to all questions. The percentages are based on the number of respondents who responded to a particular question and not the total number of those who responded to the entire survey. Some of the questions did not provide options for all of the respondents to be able to respond, such as questions that pertained to those who are in active practice rather than those who are not, or take into account those respondents who may have responded twice to questions. Additionally, the survey offered respondents the opportunity to provide narrative responses to some of the questions. The Committee has paraphrased and summarized individual comments in order to protect the possible disclosure of the identity of those individuals who made comments.

Who responded to the survey?

The Committee received 470 survey responses from 235 male attorneys (51.5 percent) and 221 female attorneys (48.5 percent). The majority of the responses came from attorneys who practiced primarily in Hillsborough (36.3 percent), Merrimack (30.2 percent) and Rockingham (16.4 percent) counties.

Survey responses were received from attorneys engaged in solo practice (16.4 percent), as well as those who worked in small firms (21.0 percent), mid sized firms of 6 to 20 attorneys (19.4 percent) and large firms comprised of more than 20 attorneys (29.3 percent). Numerous Bar members responded who did not practice in a law firm setting (15.8 percent).

Attorneys of all ages responded to the survey. The highest percentage of responses, 35.2 percent, was received from those attorneys in the 46 to 55 year old age group, followed by 30.4 percent in the 36 to 45 year old age group. Attorneys 25 to 35 years old constituted 20.1 percent of the responses while attorneys 56 to 65 years old constituted 12.7 percent. Only 1.8 percent of the survey responses came from attorneys who were over 65 years old.

[Editor’s Note: See accompanying sidebar, prepared by the Bar Association staff, comparing the demographics of the survey respondents to the Bar Association’s actual composition. This comparison provides a benchmark for further understanding of the survey’s findings.]

It was interesting to compare the results from Question #2, which asked the age of the participant, to the answers provided to Question #4 pertaining to how long the participant had been practicing law in New Hampshire. The largest segment, 30.3 percent, of the respondents had been in practice for five years or less. Since only 20.1 percent responded earlier in the survey to falling within the 25 to 35 year old age bracket, the survey results suggest that newer attorneys in New Hampshire are beginning their careers in the law at an older age, were practicing law in another state before coming to New Hampshire to practice, or turning to the practice of law as a second career. One in four respondents (25.4 percent) indicated that they have been practicing law for over 20 years, while the remaining 44.3 percent of responses fell fairly evenly over the 6 to 20 year practice period. (Interestingly, almost half (49.7 percent) of the survey participants said they were 46 years or older, only one-quarter reported being in practice for more than 20 years). Since almost half of the participants were age 46 or older, the Committee expected to see a reflection of this in the total number of years of practice. In response to Question #5, which asked how long the participant had practiced law in a state other than New Hampshire, 60 percent replied that they had practiced outside of New Hampshire with 25.8 percent having practiced outside our state for five years or less. Forty percent indicated that they had practiced only in New Hampshire.

Of those attorneys who practiced law in more than one state (54.4 percent of all respondents), more than one-third saw no difference between practicing law in New Hampshire as opposed to other states on the issue of sensitivity to gender/gender awareness. Furthermore, 12.6 percent found New Hampshire to be less sensitive to gender/gender awareness issues in comparison to their practice in other states as opposed to 7.7 percent who saw a greater sensitivity to gender/gender awareness while practicing law in New Hampshire.

Is the practice of law in New Hampshire affected by gender?

Most (451 of the 470 responses received) answered the key question: "Is the practice of law in New Hampshire affected by gender?" Of that number, 63.4 percent of the respondents (284) indicated that gender does affect the practice of law in New Hampshire.

Respondents were then invited to identify any number of ten areas where they believed that gender affected their work. Those areas included: salary, promotions, networking, rainmaking, admission to professional organizations, treatment in the courts by any court employee, treatment by clients, treatment by other attorneys, choice of practice area, and informal/social practice-related activities. Many respondents indicated that gender-based "treatment by other attorneys" affected their practice. That was followed by "networking" (167), "treatment by clients" (155) and "informal/social practice-related activities" (151), "rainmaking" (138), "salary" (127) and "choice of practice area" (117). Respondents also identified "promotions" (104), "treatment in the courts by any court employee" (91) and "admission to professional organizations" (17) as areas affected by gender, albeit less frequently as indicated by the numbers.

The selection of "treatment by other attorneys" as the biggest category affected by gender is greatly disturbing. The fact that the category "treatment in the Courts by any Court employee" is the second least selected option is extremely encouraging and reflects well on our judiciary and its employees. However these responses demonstrate the great need to increase awareness among members of our Bar.

Narrative Responses

Participants were also given an opportunity to provide narrative responses to the survey. Several commented about the survey itself, including the inadvertent omission of Sullivan County from the list of counties in which respondents practiced. Additionally, there were several respondents who expressed the belief that our survey was skewed toward bias and that question 9, which asked if gender equality/inequality had improved or worsened, presumed bias. The survey was not intended to be scientific, but rather to "take the temperature" of the legal community with regard to the issue of gender. Over the past few years, a debate has arisen within the Bar as to whether there even needs to be a Gender Equality Committee. The Committee felt that it needed to ascertain if a perception of gender bias in the legal community remains and utilized this informal "thermometer" as a springboard for future work of the Committee.

Some Respondents Find No difference

Of the people that indicated that gender did not affect the practice of law in New Hampshire, the narrative responses generally reflected that merit was the defining characteristic of treatment in the practice of law. One person indicated that she/he had never experienced differences based on gender practicing in either New Hampshire or other small New England states and posited that the small, collegial bars of these states made it such that merit or politics determined status rather than gender. A few respondents indicated that the distinguishing factors in treatment within the legal community were merit, credibility, and a good work ethic as opposed to gender. One woman indicated that her experience of practice in both New Hampshire and Massachusetts led her to conclude that the gender factor was basically absent from the equation in New Hampshire.

Another respondent commented that she/he had not felt the effects of gender in the legal community, but that she/he had numerous encounters affected by gender in the non-legal setting. Another respondent suggested that she/he did not perceive any effects of gender now, but wondered if what had felt like inequality earlier in his/her career was really ageism.

One interesting response suggested that practice in the North Country was unaffected by gender because the women who had practiced law in that area had made it easier for the women who followed to feel more accepted and respected than their predecessors had been.

For those respondents who expressed the opinion that gender does not make a difference in the practice of law in New Hampshire, it was clear that ability and personal characteristics were the criteria by which they felt they had been judged. One respondent stated that by sheer numbers, the presence of women in the Bar will eventually overcome any prejudice.

Negative Comments

The responses that were negative or critical of the concept of gender difference were interesting. The majority of those responding that the issue of gender is a "non-issue" felt that the existence of this Committee is the result of the "paranoia" of some women or that the Committee was being manipulated by certain members of the Bar for political purposes. One respondent said she/he found the whole concept of a gender equality committee to be offensive. Another stated that the more the issue is discussed, the more likely there will be backlash from those who still have a prejudice against women. One respondent suggested that by focusing attention on this "non-issue", we were taking attention away from other areas that needed more attention. A respondent suggested that if the men of the Bar wanted to create their own section or committee, there would be an "uproar." It also appeared to one respondent that women expect to be treated differently and are overly aggressive in their approach to dealing with men, thus creating the impression of difference.

Two respondents mentioned the experience of what might be called reverse discrimination or the unaccustomed feeling of being in the minority. One respondent witnessed a female being preferred over a male strictly because of gender. Another male respondent related (positively) an experience he had in chambers where he was the only male in the room at a conference between two opposing counsel, the judge, and the law clerk.

One respondent commented that when women no longer wanted their "own" committee, the problem of gender inequity will be gone.

In what ways is the practice of law affected by gender?

One of the most provocative questions in the 2004 Gender Equality in Courts Survey is Question Number 8(b) (see chart). This question pertained to those respondents who believe or perceive that gender, in some manner, does affect the practice of law. The question suggests that certain areas of legal practice could be affected by gender and required the respondents to check areas that they believe are affected by gender. As previously stated, more than 63 percent (or 284) of those responding to the survey agreed that gender affects the practice of law.

How did the respondents perceive that gender affects the practice of law? Many respondents provided the Committee with generally thoughtful comments along with their answers. The majority of those who responded that the practice is affected by gender (66.6 percent) believe that gender has the biggest impact on how other attorneys treat either themselves or others and how they are treated at their law firms. It is interesting to note that, overall, more men (51.5 percent) responded to the survey than women.

Some of the comments on treatment by other attorneys included:

  1. Physical Labor. Males are expected to do more traditionally perceived "male" things such as carrying boxes, lifting and fixing things while females were not asked to do similar tasks at the firm.
  2. Bar Association and other legal group events. Women and men perceive events such as NHBA functions and NH Women’s Bar Association events differently. A female respondent conveyed that at her law firm males "mock" the notion of the Women’s Bar Association. Some of those responding believed that many firms view more traditionally male activities (like golf) differently than less traditional activities and gave more credibility to the perceived "male" oriented events. One respondent also felt that New Hampshire Bar activities were "male" dominated and that female attorneys were hesitant to assert themselves in certain activities.
  3. Labels. Both male and female respondents commented on the continuation of inappropriate behavior at some firms such as "name calling" of female associates like "sweetie", "honey", and "dear." Some noted that inappropriate joking occurred, along with hugging and a general sense that male/female counterparts were treated differently.
  4. Dress code. Some respondents believed there to be a higher standard for women at law firms when it came to the issue of dress, in general, and in particular, "casual" Fridays or "dress-down" days.
  5. Age. Respondents also noted that older attorneys, whether they were male or female, seemed to treat younger attorneys differently and with less respect.
  6. Power. Client perceptions of male versus female attorneys was cited by many respondents. Female attorneys were viewed as less litigious than their male counterparts. Respondents also noted that women respond more politely in various situations while men respond more "aggressively." Women attorneys perceived male attorneys in their firms as having more "authority" over them as well as maintaining a condescending attitude towards them at their firms.
  7. "The Old Boys Club". Several commentators also noted that women still perceive that an "old boys’ club" exists. Older men, according to the comments, appeared condescending, patronizing and had less respect for women, especially younger women.

The survey results also demonstrated that respondents believe that gender has a large effect on networking and rainmaking. Of the total number of respondents who believed that gender impacted the practice of law, 58.2 percent of respondents felt gender impacted "networking activities," and 48.1 percent of respondents believe that gender impacts "rainmaking" opportunities. Comments by respondents demonstrated that traditional activities still viewed as good networking opportunities included attendance at golf and ball games. Some commentators felt that firms did not provide women with as many networking opportunities as men based on the type of activity. For example, attending a hockey game with clients was perceived as a more "male" oriented activity. Although many respondents perceived the categories of networking and rainmaking as being affected by gender, these categories did not provoke the most comments from respondents to the survey.

A large group of respondents commented on gender and its role in the treatment of attorneys by clients. Fifty-four (54 percent) of those responding to the survey believe that gender has a role to play in how attorneys are treated by clients. Twenty-eight (28 percent) of those responding felt gender affected an attorney’s treatment by the court and by court personnel. Comments by respondents could be summarized into two categories: Mistaken identity and the male/female advantage.

Many comments came from female attorneys who had an experience with "mistaken identity" as an attorney. One respondent had the experience of being told by a bailiff to leave the "bar" area because the bailiff thought the attorney was a client. Female commentators wrote regarding being mistaken as clients, court personnel, stenographers and legal assistants by both clients and the court. Female attorneys were sometimes mistaken as a partner’s secretary by clients. One female attorney went into chambers with her male client and was mistaken by the judge to be the client’s wife, while another respondent commented that there appeared to be judgments being made about women attorneys in the courthouse that would never be made about male attorneys. One respondent commented that men automatically get respect from the court and its personnel while women have to earn it.

Many respondents noted the appearance of a male/female advantage. In some situations, respondents believed it to be advantageous to be a female attorney while in other situations the opposite is true. One commentator thought women gained an advantage in the family law arena. The commentator thought it was a disadvantage to be a male family law attorney because there was a perceived "old gals’ network." That commentator felt female attorneys could accomplish more and were treated more favorably by the court than male attorneys. Another respondent commented that in domestic relations cases, the gender of the judge had an impact on the outcome of the case. Other gender-based advantages perceived by the respondents were comments regarding:

  1. Differing treatment by judges. Some commentators felt that some judges were more comfortable speaking and/or joking with male attorneys at the bench, in chambers or during a hearing. One commentator in particular was frustrated with certain male judges’ treatment of female attorneys, adding: "What can an attorney do?" It was noted that a continuance was not granted by a judge in a case because of medical/pregnancy issues.Others were granted a continuance for a sports injury.
  2. Differing views on the use of "demeaning" titles by judges and court personnel. Respondents reported the use of the term "brother" by senior judges, or being called "sweetheart", "dear", "madam", or "young lady" by judges and court personnel. Some respondents found the names completely inappropriate. Others believe that the judge or court staff did not intend any disrespect; nonetheless, the respondents found it embarrassing to be called such names in front of their clients.
  3. Physical appearance. Some respondents believe that physical appearance can affect the treatment of attorneys as well as the outcome of cases, and particularly, jury verdicts. One male respondent observed that everyone assumes he is an attorney because of his suit and tie, while women may be mistaken for other personnel at court and in the office. Another commentator believes that judges and masters respond in a more favorable manner to female attorneys who are attractive rather than unattractive female attorneys or female attorneys who are not trying to be attractive to men. One female attorney wrote that she was asked by a senior partner at her firm to second chair at a trial to "distract" the jury.
  4. Aggressiveness. Women trial attorneys were thought by some respondents to have reputations as being more aggressive and thoughtless. Others commented that some clients do not want women attorneys because of the perception that women are not tough enough.

There were many comments submitted from respondents regarding the gender impact of family life, even though the survey did not specifically address family issues. The Committee received countless comments on how having a family impacts the practice of law depending on gender. One major area respondents addressed involved the traditional perception that partnership track is affected by gender. Some women responded that they were asked inappropriate or illegal questions at initial job interviews. Some comments pertained to women and "family-oriented" men seeking government positions as the law firm structure did not fit their family needs. Many respondents commented that there has been great progress with law firms in recognizing and accommodating family needs; however, more still needs to be done. The majority of comments involved children’s needs and balancing work with family.

Other respondents regarding the work/family balance proffered the need for flexible schedules, better paternity and maternity leave, and the development of guidelines for reduced work schedules without impacting advancement within the firm. A sample of comments regarding family received by the Committee are as follows:

  1. Job structure. Anecdotally, respondents believed that more women and family-oriented men seek out government positions as firms cannot make time for family-related issues. One respondent believed that there is a more genuine effort to accommodate family issues however it is not enough and no one has the answer;
  2. Women leave firms after having children. The practice of law has neither dealt with nor handled issues surrounding parental leave or part-time work particularly well. One commentator lamented as to the loss of valued female attorneys and stressed this as a real risk for firms and clients. She noted that female attorneys bring a valuable and important approach to the practice of law. One woman commented that women attorneys "are not male attorneys in skirts" but rather that female attorneys are professionals who bring "compassion, support and flexibility" to the practice;
  3. Balance. Many comments from both men and women related to the personal and professional need of balancing family and work.
  4. Court schedules. Neither the Court nor clients are sympathetic to continuances for childcare and/or pregnancy issues.
  5. Part-time compensation. The issue of part-time work and its relationship to compensation was raised by many respondents. Some respondents felt that women attorneys are penalized and not fairly compensated for part-time work arrangements. Some part-time attorneys may have reduced work schedules but feel their billable requirements are not proportionally reduced.
  6. Lack of partnership track for women with families. Some women commented that they were given mediocre work assignments presumably because of the lack of time the women would be able to spend on the project and a perception that they cannot commit to their jobs. Some attorneys believe that women have to work harder at demonstrating that their family will not be negatively impacted by their contributions to the firm.
  7. Part-time respect. There was a perception of not being accepted or respected for working part-time by both male and female full-time attorneys.
  8. Networking with a family. "Mommy track" attorneys cannot network as well as single or male attorneys, thus creating disadvantages for the female attorney at work. The female attorneys who are the primary caretakers for their children do not have the time to do after-hours networking. Many firms have expectations of marketing and community involvement that do not reflect the realities of family life.
  9. Image. Firms and partners worry about the affect of part-time attorneys on both their budgets and firm image.
  10. Part-time litigators. Many respondents noted that they made a change of practice areas in order to accommodate their families.

Over time, has gender equality/inequality improved in New Hampshire?

In question 9 the Respondents were asked, "Over the time period in which I have practiced law in New Hampshire, I feel that issues of gender equality/inequality have":

  1. Improved slightly: 30.7 percent (129)
  2. Improved significantly: 25.7 percent (108)
  3. Stayed the same: 42.1 percent (177)
  4. Worsened slightly: 1.4 percent (6)
  5. Worsened significantly: 0.0 percent (0)

Four hundred and twenty (420) of the survey respondents answered this question. A sizable majority of the respondents stated that gender equality/inequality issues have either stayed the same or have improved. Of those surveyed, 42.1 percent felt that gender treatment has not changed since they started practicing law, while 30.7 percent of the respondents believed that issues of gender equality/inequality have improved slightly. It is encouraging that 108 respondents (25.7 percent) felt that these issues have improved significantly. It is also heartening that only 6 respondents (1.4 percent) replied that issues of gender equality have worsened slightly, and no respondents felt that these issues have worsened significantly.

The survey respondents had interesting experiences and opinions regarding how gender equality issues have changed over the years. One attorney stated that early in her career, she confronted many situations that would likely be grounds for sexual harassment claims today. However, she believed that there has been a "significant improvement" in how female attorneys are treated by their male counterparts. Similarly, one experienced attorney observed that the general perception of the bar had improved over the past 30 years. The public now accepts both male and female attorneys on an equal basis.

Another experienced attorney stated that although New Hampshire had "miles to go" when she started practicing in 1976, New Hampshire has "improved greatly" in dealing with gender issues. Similarly, another respondent noted that sexism is still an issue, but that things are better now.

Several attorneys noted the continuing existence of a "good old boy" network in the New Hampshire bar. Specifically, one attorney related her perception of the existence of an "old boys club." However, she did state that "real progress has been made over the years in the profession as a whole." Furthermore, she gave an interesting example of this progress in making the following comparison: many years ago, the law school applications stated that "women are discouraged from applying." When the respondent graduated from law school 12 years ago, more than half of the graduates were women.

Several respondents gave specific examples of how gender equality issues have affected the practice of law in New Hampshire. For example, one attorney noted that a "woman judge no longer stands out . . . the way it did 15-20 years ago." An attorney happened to be at the Supreme Court the day that a case was heard by five women justices (including four substitute justices), saying, "Now that did stand out!"

Another respondent commented on the timeliness of the survey, stating that she would have said she saw significant improvement over the past 20 years if not for the current sexual harassment investigations of Judge Jones and Attorney General Heed. This attorney went on to say that the Bar Association leadership was "letting us all down . . . by not issuing some sort of statement."

As noted earlier in this article, some attorneys took issue with the question itself, saying that it "presumes the existence of inequality." Another respondent went further by stating that the survey is "heavily biased" in its assumption that any gender-based difference is indicative of a disadvantage to one gender with respect to the other. He/she also said that men and women have different perspectives about everything, and that these different perspectives "add a richness to the discussion and an expansion to the range of possibilities that most of us recognize and applaud."

Although several respondents indicated a marked improvement in gender equality issues over the years, many believe that gender inequality is still a factor in the practice of law in New Hampshire.

Conclusion

Although several respondents took issue with the very existence of the Gender Equality Committee and this survey, one cannot ignore the fact that that so many respondents, both male and female, have demonstrated by their responses to the survey that gender issues still exist in the New Hampshire court system and within the Bar Association membership. One female respondent pondered, "When is the Bar going to do something about these issues?" and "Where are the women in leadership positions?" The purpose of this survey, as noted earlier, is to assess the perceptions of gender bias in the legal community. The Committee’s goal is to use the survey results to find ways to further improve gender equality in the practice of law.

New Hampshire attorneys have a duty to each other, their clients, and the general public to show respect in all professional dealings with other members of the Bar. When attorneys are able to judge each other based solely on ability, it is likely that others (i.e., court personnel and clients) will follow suit.

The survey results demonstrate that gender issues are not only women’s issues, but affect many men as well. We need to think outside the traditional framework as the current firm/billable requirements make it difficult for family-oriented men and women to succeed and be promoted. Is it the nature of the practice of law or the treatment of the participants in the practice that needs to change?

Catherine E. Shanelaris, Chair, Katherine L. Brown, Kimberly Memmesheimer , Heather Logan and Kendra C. Phillips, are members of the Gender Equality Committee who developed the survey and co-wrote this article.

SURVEY RESPONDENTS TO BAR MEMBERSHIP COMPARED

The demographics of those who responded to the survey differs from the composition of the Association in several key areas. Proportionally, female attorneys were more likely to respond to the survey —only 32.5 percent of the Bar’s membership is female, while 48.5 percent of the surveys respondents were female. Lawyers responding to the survey tended to be younger and working for larger firms in the most populous counties than the overall Bar membership.

The age brackets and law firm size categories for the Gender Equality Survey and for the Association membership database do not match up precisely, but it is worth noting that:



 

SURVEY RESPONDENTS 

OVERALL BAR MEMBERSHIP

Size of Law Firm
Solo 16.4% 31.8%
Small firms (2-5 attys) 21% 27.7%
Mid-size (6-20) 19.4% 25.8%
Large (21 attys or more) 29.3% 14.6%
Age
25-35 yrs old: 20.1% 24-30 yrs: 3.1%
  36-45 yrs: 30.4% 31-40 yrs: 22%
  46-55 yrs: 35.2% 41-50 yrs: 33.4%
  56-65 yrs: 12.7% 51-60 yrs: 29.2%
  65 + yrs: 1.8% 61-70 yrs: 8%
County Where Practice or Office is Located
Hillsborough 36.3% 21.8%
Merrimack 30.1% 17.7%
Rockingham 16.4% 10.5%
Bar Association statistics are from the NHBA membership database as of February 1, 2005.

 

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