Et Tu, Public Interest?

One article's take on women lawyers in public interest organizations

I’ve occasionally noted that many of the publications we discuss regarding women lawyers analyze what’s happening in private law firms. Although some reports include women lawyers who are in-house, law school professors, or judges, there isn’t a lot of information out there about women lawyers who work in federal or state government positions. And there’s nothing about women who work in public interest positions.

While I’ve certainly noticed this absence, I usually dismiss it because, in light of the strict hierarchies present in law firms, it’s easier to track the career progressions of women in those places. It’s more difficult to do that in government—where the top positions are often achieved by political appointment rather than promotion. And it’s difficult to do that in public interest positions where hierarchies can be flatter or even non-existent. In addition, since I’ve noticed throughout my career that there are women throughout government and in public interest jobs, I probably assumed there wasn’t the type of problem that exists in law firms and corporations.

At least one author would say that I’ve let our profession off far too easily—that we should have done and be doing a far better job at tracking and measuring the career trajectories of women in government and public interest positions. Frankly, we should be doing this for women lawyers in all types of non-traditional jobs. We shouldn’t fail to do things because they’re difficult. We should care about women in these types of jobs not only because they can be our co-counsel or our clients, but also because we know the route towards gender equality means lifting all up women.

To help fill that void, in this week’s Comes Now, we talk about women lawyers working in public interest positions through the eyes of a May 2020 article written by Sandra Simkins in the Buffalo Law Review entitled The “Pink Ghettos” of Public Interest Law: An Open Secret.

Messages About Public Interest Work

Simkins starts out at the beginning of our education. She contends that even though law schools teach us the importance of public interest and pro bono work, because that type of work is so often aligned with women’s traditional roles of caregiving, it is always placed on a lower hierarchy than work in private sector.

Moreover, the professors who teach those subjects—the first-year writing professor, the pro bono coordinator, and the public interest clinical professor, are often placed on lower tiers than professors who teach other subjects. And, as the chart below from page 870 of Simkins’s article illustrates, those “lower tier” professors are most often women.

Simkins then describes how, once women lawyers get into public interest positions, the culture in those jobs reinforces the messages that originate in law schools. She says that public interest lawyers are indoctrinated to be exclusively client-focused to the exclusion of women’s advancement. Simkins claims this “indoctrination” creates a disincentive for women to engage in self-promotion.

Simkins says that throughout her career she has observed obstacles to women’s advancement in public interest careers such as:

1. A pervasive lack of resources and indigent clients in dire circumstances, creating a conflict between self-advocacy and client advocacy.
2. The tendency of public interest organizations to be exclusively client-focused; and
3. The failure of the public interest sector “writ large” to acknowledge gender segregation within the field.

As Simkins sees it, organizations that lack financial and other resources often can’t support the professional development of their staff. They can’t send them across the country to national conferences the way that organizations within the private sector do. She also notes that it’s difficult to advocate for a raise, promotion, or professional training when that money could be used to hire more staff to expand services to clients.

She doesn’t just observe a lack of resources, Simkins also sees a “culture indoctrination” “where it is taboo to discuss personal advancement and career goals.” p.881. She says that public interest conferences rarely include sessions on career advancement topics. “Over time, this culture may decrease mobility for women lawyers and create guilt for even thinking about leaving the field of public interest to do something else.” p.882. Even though men in public interest careers also face these barriers, Simkins says they disadvantage women more “because men have always had society’s permission to do that is necessary to take care of themselves and their families.” p.883

The Legal Profession’s Blindness

Simkins then moves to the legal profession as a whole.

As she correctly notes, “there is no data on women lawyers who choose public interest.” p.863. There are at least two major problems with this lack of data. First, the absence of it minimizes the women lawyers working in public interest jobs: “Without data, these women remain invisible.” p.886. Second, a lack of data prevents women attorneys in public interest from using data to advocate for themselves. Women who want to make partner can point to mountains of data from the ABA and elsewhere to make the case that women are underrepresented in senior ranks, but women in public interest positions have nothing equivalent to cite. Simkins says that “[b]y failing to focus on the experiences of women lawyers in public interest, the ABA effectively gives public interest law officers a pass when it comes to gender equity and women in leadership positions.” p.888.

Simkins was only able to find two reports that have specifically looked at the experience of women lawyers in public interest. The first, a 2010 report by the Hispanic National Bar Association Commission on the Status of Latinas in the Legal Profession (LAPIS), was only based on a sample of twenty-five women attorneys. The second report, a report done by Kelly Miller focusing on the experiences of women in Legal Services, was originally completed in 1993. Both of these reports found that, despite that fact that both fields were dominated by women, most supervisors were white men.

How Things Could Be Made Better

Simkins has numerous suggestions for improvements that could be made that would make a significant difference for women interested and currently working in public interest jobs.

Law schools. First, law schools should include “gender in the legal profession” topics in their curriculums and incorporate gender segregation discussions into pro bono and public interest programs and courses. She also suggests that, to discourage women from defaulting to caretaking roles, law schools should explicitly limit the number of pro bono hours students can perform while they have fulltime status. Law schools should also ensure pay equity among law school faculty and create paths to tenure for all professors, regardless of what they teach.

The profession. “Data collection is the clear first step.” p.893 She says that, at a minimum, the ABA should routinely include public interest markers into their annual Women at a Glance publication. They should also require public interest organizations who attend the Equal Justice Works Career fair to contribute data on the race and gender makeup of their leadership and staff. Alternatively, major public interest organizations should publish their own data.

Public interest organizations. Finally, Simkins suggests that public interest organizations “intentionally encourage women to focus on their own career advancement”—inside and outside of the office. p.894

I’m not sure if all of Simkins’ conclusions—many of which she admits are based on her personal observations—hold up to larger scrutiny. But even if they don’t, she makes a compelling case that the legal profession has completely failed to gather—much less analyze—data that would make the story more nuanced. I hope that, despite the admitted complexities in compiling this information, our profession will accept her call to do so.

Because, as readers of this newsletter know, we don’t value what we don’t measure.

Note to Subscribers

I’ve recently started a new job and it’s been very busy. For the next few months my writing schedule may be somewhat erratic until I figure out what I want to do with Comes Now next. Bear with me. I’ll let you know when I’ve decided what to do.

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