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• Informing Women’s Choice Of Private Lawyers
• Conclusion
• The Need For A Diverse Profession

8. Choice among private lawyers

“Community organisations such as ours need more detailed information. We need lists of lawyers available, particularly women lawyers, which provide details of specialties, and their availability. These lists need to be regularly updated.” – Submission 16 on NZLC MP9 (community group)

Informing women’s choice of private lawyers

611 THERE WAS A RANGE OF VIEWS among the women consulted in this

study about the qualities of the lawyers they would engage if they had an unfettered choice. Some women said they would choose a lawyer solely on the basis that he or she had considerable experience in the relevant area of law. But many more said that they would give weight to a lawyer’s personal qualities too, especially when the problem for which help was needed was of a personal nature. They would, they said, find it easier to identify with, and so confide in and trust, a lawyer who had particular personal knowledge and skills. The following comments were typical:

“The way I was feeling at the time I felt I wanted a female lawyer as she would be more supportive of me.” – Submission 65

“We need more Mäori women lawyers . . .  Someone who can understand where we come from as Mäori. Someone who we do not have to explain ourselves to.” – Transcript of hui with Mäori women, Rohe 1

“It would be a Pacific Islands woman that I would feel more comfortable with. Some things you can’t talk to a man about not even your husband.” – Report on Consultation with Pacific Islands women, 10

612 Whatever significance individual women attached to lawyers’ professional and personal knowledge and skills, a very widespread complaint was that insufficient information is publicly available about either of those matters. As a result, women said that they had often “found” their lawyers (rather than chosen them in any real sense) by means of an ill-informed, and so stressful, process which reinforced their sense of alienation from the justice system.

“Why can’t we have a list of lawyers available to the community which explains whether they are male or female? Even a photo with information about their interests in law and their current work would be really useful for the women.” – Transcript of hui with Mäori women, Rohe 4

613 In most respects, the women’s comments are consistent with results from the 1996 New Zealand Law Society Poll of the Public. It found that almost 40 percent of the public did not have an established relationship with a lawyer the last time they sought legal services. It also found that the New Zealanders who are most likely to know their lawyers as personal or family friends, and to have relied on that fact when they last chose their lawyer, are men, those on household incomes over $80 000, those in administrative or managerial positions and those who live in main metropolitan areas. (Poll of the Public, 47, 51)

614 Women without contacts within the legal profession said that they would usually turn to friends and family members for information about suitable lawyers. (See further Women’s Access to Legal Information NZLC MP4, 28–29) This too is consistent with the poll results about the sources of that kind of information for New Zealanders who do not have personal contacts with lawyers. (Poll of the Public, 47) However, prospective clients’ reliance on word-of-mouth referrals from friends and family members can be problematic, most obviously because those people may also not know, or know where to find information about, an appropriate lawyer for a particular matter. No doubt the increasing specialisation of the legal profession and the absence of any professional systems for recognising lawyers’ expertise in particular fields of law compound the difficulties in this regard. Certainly, a number of women said they had been disappointed when a first meeting with a recommended lawyer made it plain that their particular legal problem was not within the lawyer’s area of expertise. In other cases women said they were not told this by their lawyers and, by the time the fact was evident, they were unwilling to change lawyer either because of the time and costs already incurred or because they were still unsure how to find a lawyer with expertise in the relevant area.

615 Even if friends or family may be able to recommend an appropriate lawyer it is sometimes not possible for women to ask them for assistance because of the personal or private nature of their legal problems. It was frequently said by women who had been in violent relationships, and by women in small communities where confidentiality was an issue, that they needed to obtain information anonymously, yet were unaware of any reliable means by which they could do so. Some had their lawyers allocated to them by the internal processes of law firms which they had “chosen” simply because of their location, or because the women had heard of them, or because the firm’s Yellow Pages or local newspaper advertisements indicated that somebody there worked in the relevant field of law. Again, the Poll of the Public confirms that a firm’s being “well known”, in a “convenient location” or advertising in the Yellow Pages has a considerable influence on people’s “choice” of a lawyer. (Poll of the Public, 47)

616 The poll found that community groups provided only a very small proportion of people with referrals to lawyers, but that those involved in custody and access issues were the most likely to have asked a community law centre or citizens advice bureau for advice in choosing a lawyer. (Poll of the Public, 50–51) By contrast, the information gathered in this study suggests that community groups are often asked to provide the name of a lawyer, especially to women involved in family disputes, but that few are equipped to provide that information. Some, including most community law centres and women’s refuges and many citizens advice bureaux, are supported by their networks with lawyers, with one another, and with state agencies, especially Family Court co-ordinators, from which appropriate referrals can be made. Some groups rely on what they know is only very general, and sometimes dated, information that has been gathered in the course of their various activities. Others rely on no more than their own workers’ personal knowledge and contacts, in the same way family and friends do.

“We are often asked for a list of women lawyers – we need a list.” – Meeting in Nelson, May 1996 (community group)

617 In addition, processes for referral in some areas are cumbersome and unreliable. In one major city the community law centre knew victims of family violence who had been referred by the police to the Family Court, where they had been referred to the law centre, which then made referrals to lawyers.

618 The 1997 E-DEC report on the legal profession commented on consumers’ need for information about lawyers:

We are left with the conclusion that there are likely to be significant information-based market failures in the personal services legal market. As these constitute some 60 percent of the overall legal services market (covering services such as conveyancing, estates, wills, trusts, family law) this market failure does appear to be a significant problem.
These information problems are related to what is known in the economics literature as “information asymmetries”. This refers to a situation where the purchaser does not have the information required to make a reasonable choice as to the supplier of a good or service. It is an accepted ground for regulation. (E-DEC Background Report (Parts 1 to 5), 96)

The report went on to recommend the introduction of a code of client service to ensure that “legal practitioners meet stipulated minimum standards, [so that] those clients who are unable to assess quality can nonetheless be confident that any lawyer they choose will provide at least a reasonable service”. (E-DEC Background Report (Parts 1 to 5), 100) (See further, chapter 10)

619 Women’s Access to Legal Advice and Representation recorded the law society initiatives which have been taken to assist members of the public to choose a lawyer (NZLC MP9, 26–29). Most notably, the New Zealand Law Society Law Awareness pamphlets advise people to:

• ask friends to recommend a lawyer;

• look in the Yellow Pages;

• ask a citizens advice bureau; or

• contact the local district law society.

620 The pitfalls of the first and third of those options have already been discussed. As to the second option, law firms’ Yellow Pages entries are typically spartan in the amount of information they give about either of the two matters that women said would be critical to their genuine choice of a lawyer: the professional and personal knowledge and skills of the individual lawyers who work there. Even among firms which list their areas of work, it is often impossible to identify whether any of their lawyers are women or from minority ethnic groups.

621 Relevant to the fourth option is the fact that only two of the 14 district law societies publish directories of local lawyers, and that few of the women consulted knew that district law societies could provide referrals to local lawyers. The project team’s own inquiries revealed that most societies do not regard it as appropriate to recommend one lawyer over another, and so will provide callers with the names of several local lawyers who work in the relevant field of law.

“The Wellington directory of legal services is a good example of a local resource that many agencies can use – a role model that could be built on in other parts of the country.” – Submission 19 on NZLC MP9

Conclusion

622 It is evident that more information and co-ordination is needed within the community to help women find suitably skilled lawyers. This will not be a simple matter to achieve. A multi-faceted approach is required to take account of women’s diverse needs and also the variety, in different parts of New Zealand, in the quantity and degree of co-ordination of the available legal information, advice and representation services. The role of law societies and district legal services committees is critical for they are in the best position to gather much of the information that women need and enable it to be made available to women by as many routes as possible.

623 Because word-of-mouth referrals from family and friends are likely to remain a significant source of information about lawyers, education of the public about the work that lawyers do would assist people who are choosing or advising others about which lawyer to approach for legal assistance. Responses to questions asked in the Poll of Lawyers are relevant here. A majority of the lawyers polled (55 percent) said they would support an institutional advertising campaign to promote the legal profession as a whole, and more than two-thirds (68 percent) said they would pay an annual contribution towards the cost of increased public relations activity by the law societies. (Poll of Lawyers, 67–68)

624 The possibility that lawyers’ accreditation schemes may be introduced in the future is also relevant. Both the Family Law Section of the New Zealand Law Society and the Auckland District Law Society are investigating this possibility. If, as can be expected, such schemes included components dedicated to gender and cultural issues in a sincere effort to equip lawyers to meet the diverse needs of clients, this would make publicity about the schemes and accredited lawyers pertinent to many women.

625 Advertising by law firms is also important, but will not in itself meet the information needs of prospective clients who want a recommendation to a lawyer, not merely a self-promotion by one. This study has not attempted to appraise the publicity efforts of New Zealand law firms, but the Poll of Law Firms is instructive for showing that only 7 percent have a formal (written) marketing plan, and a further 42 percent have an informal plan. That poll also shows that the larger a firm is, the more likely it is to have a marketing plan and that marketing expenditure will be budgeted for rather than incurred ad hoc. (Poll of Law Firms, 11–13)

626 Those facts may help explain why lawyers working in firms in the central business districts of cities were less in favour of an institutional advertising campaign to promote the profession as a whole than were those in suburban or provincial firms, and why principals in large firms were less in favour of paying a contribution towards increased public relations activity by law societies than were those in small or medium sized firms. (Poll of Lawyers, 67–68) In other words, those lawyers who work in firms which are most heavily involved in promoting their own activities would seem to be among those who are least likely to support increased public relations efforts by law societies.

627 Throughout all the discussions with New Zealand women about their needs for legal information, including information about lawyers, there was a very strong call for publicity to be given to community-based sources of relevant information. Such sources have to exist, of course, before they can be publicised. In some areas, most notably those with community law centres and with citizens advice bureaux which have close links with local lawyers, there are already community-based sources of legal information, including referral services, which many more people might use if they knew about them. It has been noted in chapter 6, for example, that some women in areas with community law centres did not know of their existence. It was also indicated there that publicising existing community-based sources of legal information can give rise to problems. For example:

• the budgets of community-based providers do not support extensive advertising of their services;

• if advertising of their services were to be too successful, community providers may not be able to keep up with demand;

• not all New Zealanders who want information from community-based sources will be comfortable approaching existing providers.

628 It is essential, therefore, that the ability of diverse community groups to refer their clients to suitable lawyers needs to be developed alongside the development of community-based legal services. It should be possible, for example, for any woman who lives in an area which does not have a community law centre to readily obtain a referral to a lawyer who is known to work in the relevant field of law and to be empathetic to the woman’s circumstances. It should be possible for any woman who does not want to visit the nearest citizens advice bureau because she fears being seen there to readily obtain a referral to such a lawyer. And it should be possible for any woman who does not speak English sufficiently well to talk to an English speaking community worker to readily obtain such a referral.

Recommendations

629 A strategy is needed to increase the diversity of information about lawyers’ services. Consistent with the principles and process identified in chapter 1 as being essential to promote the just treatment of women by the justice system, the key components of such a strategy are:

• consultation with women and community groups about the information that is needed to ensure appropriate referrals to lawyers;

• creating diverse information resources to meet those needs;

• co-ordinating efforts to publicise referral services; and

• monitoring the effectiveness of the efforts taken.

630 In light of the predominance of women’s concerns for family and legal aid matters, the following initiatives are considered to be among those that are urgently needed to assist women to choose lawyers in whom they can most readily repose trust and confidence. Accordingly, it is recommended that:

• district legal services committees ensure that regularly updated information about family and legal aid lawyers is available to women, especially through community groups likely to be approached by women for referrals;

• law firms which offer services in areas known or likely to be of particular relevance to women, including family and legal aid work, consult with community groups which are likely to refer women clients in order to improve the quality and effectiveness of their referrals;

• the Family Law Section of the New Zealand Law Society promote members’ efforts to publicise their professional and personal knowledge and skills;

• the Legal Services Board continue its efforts to establish a well-publicised 0800 specialist legal information service, one function of which would be to make appropriate referrals to prospective women clients;

• in the meantime, the Legal Services Board and district legal services committees consider providing relevant information, and operational and advertising funding, to existing 0800 telephone information services so that women can obtain appropriate referrals to lawyers from those services;

• the Legal Services Board and district legal services committees, the New Zealand and district law societies and the Department for Courts coordinate their efforts to publicise the availability of referral services, in consultation with the providers of those services;

• law societies pursue the introduction of accreditation programmes which include training in gender and cultural issues to ensure accredited lawyers have, and maintain, the skills necessary to meet the needs of diverse women clients.

the need for A diverse profession

The legal profession also carries wider social and political obligations to society as a whole. If the profession is to fulfil its role in protecting the rights of minorities within society and promoting the welfare of the disadvantaged, it is vital that its own composition reflects the social and cultural diversity of today’s society. (Lord Chancellor’s Advisory Committee on Legal Education and Conduct, 1996, para 1.20)

631 Improving the means by which women can choose lawyers is one way of meeting the diverse needs of women for legal services. Another is to increase the diversity of the existing pool of lawyers from which women can choose.

632 The New Zealand legal profession does not reflect the population base that it serves. As has been seen (chapter 5, paras 361 and 362), less than 30 percent of practising lawyers are women and the overwhelming majority of lawyers are Pakeha.

Why is there a need for a diversity of lawyers?

633 There are two main reasons why diversity in the demographic composition of the law profession is important. First, in purely practical terms, the unrepresentative make-up of the legal profession means that many members of the public, most notably people from groups which are over-represented among the most disadvantaged sections of the population, are not able to find a lawyer who understands their background, their language or their experience of disadvantage. Inevitably, this will have a detrimental effect on the quality of the services available to them. Secondly, diversity among the profession and, therefore, the judiciary is critical to those institutions’ credibility, especially with regard to their ability to perform their vital roles in upholding the law to avoid discrimination against the very groups who are under-represented in their own numbers.

The effect of limited client choice on service quality

634 People’s access to justice is restricted when advisers do not understand the experience or background of clients. During the consultation meetings, women consistently said they felt like unwelcome intruders in the legal system because the large majority of lawyers are male, white and middle class. There was little choice for those who would prefer, if they could, to engage a woman lawyer, or a lawyer from the same minority ethnic group as the client, or a lesbian lawyer.

635 Sometimes a lawyer from a particular ethnic background would be sought so that the same language could be spoken. The 1996 Census provides information about the languages other than English spoken by lawyers in practice at that time. The most commonly spoken other languages, and the numbers and sex of the lawyers who speak them, are as follows:

• Mäori: 133 lawyers (75 men and 48 women);

• Samoan: 36 lawyers (21 men and 15 women);

• a Chinese language: 99 lawyers (48 men and 51 women);

• Japanese: 24 lawyers (15 men and 9 women).

While most lawyers who speak languages other than English are from the relevant minority ethnic groups, 15 of the 99 Chinese-speaking lawyers, and all of the 24 lawyers who speak Japanese, are Pakeha.

636 More often, the wish to engage a lawyer of the same sex, ethnicity or sexuality as the client stemmed from the firm belief that this would guarantee better communication between them.

“Only a Mäori can understand what Mäori go through. We need to connect with another Mäori woman. This is really important for us.” – Transcript of hui with Mäori women, Rohe 2

“We need [Mäori lawyers] because of the cultural barriers that exist between us and the Pakeha lawyers in town. If we had more Mäori lawyers it would be much easier for us women to approach them because they know our culture. So it would be much easier for us to speak more comfortably if we had Mäori lawyers . . . Our elders find it more comfortable talking to a person who is Mäori.” – Transcript of hui with Mäori women, Rohe 7

“One would assume that a lesbian lawyer would know more about issues for being a lesbian.” – Report on Consultation with Lesbians, 38

637 It was emphasised that lawyers’ understanding of the social context within which women’s problems arose was of particular importance to women clients in certain situations. Problems of a personal nature, those involving domestic violence, the welfare of children and upheavals to women’s everyday lives were frequently included in this category. So too were problems mentioned by Mäori women such as those related to whanau and to taonga. Lesbians also talked of situations in which a lawyer’s knowledge of their social context was important, such as illness of a same-sex partner, or custody and access of children.

638 Some lawyers who attended meetings and responded to the consultation papers tended to dismiss women’s emphasis on lawyers’ understanding their everyday lives. Their view was that together with technical legal knowledge and skills, a lawyer’s personality and character, rather than social experience, are more important in assuring the provision of quality services to clients. It is true that it is not a prerequisite to the provision of competent and appropriate legal advice that lawyer and client share a similar social background. But effective interaction between them depends on the lawyer’s awareness of, and sensitivity to, the client’s values, experiences and needs. The larger the difference between the world views and experiences of lawyer and client, the less likely it is that the lawyer’s personality and character (themselves formed by a different set of life experiences) will be sufficient to bridge the gap. In that situation, the lawyer’s understanding of the ways in which the client’s life experiences may affect the client, both outside and inside the lawyer’s office, is the best defence against miscommunication and its negative flow-on effects for quality service.

639 An obvious effect of cultural and other social gulfs between lawyers and their clients is that clients can be intimidated by the very fact of dealing with lawyers. What may be less obvious to some lawyers is the depth of this feeling among clients who perceive themselves to be alienated not only from their own lawyer but from the legal profession and the justice system more generally. This sense may arise from the client’s ethnicity, gender or some other factor which is critical to their own identity but which is not readily found within the legal profession, or indeed the personnel of the wider justice system. For clients who, for statistically sound reasons, feel that “people like them” are not adequately represented among lawyers, judges, parliamentarians or any other group with influence in the making and application of the law, the discomfort experienced when dealing with lawyers who are not “like them” can be too deeply rooted to be dispelled by those lawyers’ best efforts to put their clients at ease. This is particularly likely to be the case when the matter upon which a lawyer’s assistance is needed is itself closely involved with the client’s ethnicity, gender, sexuality or other self-identifying factors.

640 The clear message conveyed by women who felt alienated from the legal profession because of their gender, ethnicity, sexuality or a combination of those factors, was that they had very few, if any, options when choosing a lawyer in whom they could repose the trust and confidence which is integral to an effective lawyer/client relationship. When the nature of the problem is seen in that light, it is evident that part of the response that is required is to increase the efforts to encourage diversity among the membership of the legal profession. But because those efforts will take time to yield significant results in some areas, another part of the response must involve increased efforts to inform lawyers, especially those whose services are most likely to be utilised by a diverse clientele, about the social facts which lawyers need to understand if they are to provide quality service to all their clients.

Promoting equality through law

641 The second main reason why diversity in the legal profession is important relates to the ability of the profession and the judiciary (whose members are appointed from the legal profession) to play their parts in upholding the rule of law in society, including the enforcement of human rights and the avoidance of discrimination. If the legal profession and judiciary are not seen to promote diversity within their own membership, serious doubts arise as to their credibility in protecting and enforcing those rights within society generally.

642 With regard to the situation of women in the legal profession, the 1993 report of the Canadian Bar Association Taskforce on Gender Equality in the Legal Profession, Touchstones for Change, observed that “[h]ow an institution treats its female members is a reliable indicator of general institutional attitudes towards equality”. (Canadian Bar Association, 1993, 18) Another Canadian report put it this way:

Women who are lawyers are a privileged group among women. If they are not treated with equality by the justice system, then it is every woman’s credibility that is questioned by the system. (New Brunswick Advisory Council on the Status of Women, 1992, 3)

643 This study has provided ample evidence of a widespread view among New Zealand women, within and outside the legal profession, that the under-representation of women in the legal profession and the judiciary is symptomatic of deeper inadequacies in the capacity of the law and its institutions fully to accept the need for equality between women and men, to recognise the inequalities that exist in society, and to be alert to the law’s ability both to perpetuate the status quo and to promote change. Any suggestion that this must be the opinion of a minority fringe would seem to be answered by the fact that a considerable number of New Zealand’s judges have expressed similar views.

644 In a questionnaire answered by 127 (79 percent) of the country’s judges and masters in 1996, one of the statements presented for the judges’ agreement or disagreement was “. . . for a very long time only men have been in a position to make and administer the law, and a necessary, and perhaps inevitable, consequence of that, is that the law responds to, recognises and validates male concerns and male interests”. Half of the judges (63) agreed or strongly agreed with that statement (45 men and 18 women). Fewer judges (53) disagreed or strongly disagreed with it (52 men and 1 woman). Of the remaining 11 judges, eight had no opinion about the statement and three failed to indicate their views. (Barwick, Burns and Gray, 1996, 50)

Why the lack of diversity within the legal profession?

645 The under-representation of particular groups within the profession has many causes. However, only the position of women has been significantly researched.

Sex discrimination in the profession

646 A growing body of national and international material has concluded that sex discrimination exists in the legal profession.[24] The types of barriers that women lawyers have been found to experience to a far greater extent than men include sexual harassment, lower salaries than men with the same number of years experience, difficulties in securing well paying files, and segregation into certain areas of practice. In addition, women progress more slowly to positions of seniority, and experience unwillingness on the part of law firms to accept their family responsibilities.

647 An indication of the effects of these practices is provided by the most recent data available from the New Zealand Law Society database of members. It shows that, in August 1998, there were 3042 partners in New Zealand law firms: 2628 men and 414 women. Accordingly, women, who are 29.5 percent of the practising profession, now make up 13.6 percent of law firm partners. The data also shows that over the last 10 years, more women and than men have been admitted to the profession (1021 women and 999 men). However, only 9.8 percent of those women and 17.8 percent of the men are now partners in law firms. In the 10 years following lawyers’ admission to practice then, men are nearly twice as likely as women to become partners in law firms. In addition, women partners are disproportionately concentrated in firms of fewer than five partners and, particularly, in firms with only one or two partners, where the transition to partnership results more (or entirely) from an act of self-will than from promotion by others. Indeed, a third of New Zealand’s 414 women law firm partners are in sole partnership (compared to 28 percent of the 2628 men partners), and more than half (52 percent) partners are in firms of just one or two partners (compared to 43 percent of men partners).[25]

648 Since 1980 there have been a number of studies and surveys of the position of women in the New Zealand legal profession.[26] Each has identified the existence of discrimination against women lawyers, and most have made extensive recommendations for change. While some of these recommendations have been implemented (see paras 682–686), the results of the two most recent New Zealand surveys, the 1996 New Zealand Law Society Poll of Lawyers and Gatfield and Gray’s Women Lawyers in New Zealand – A Survey of the Legal Profession (1993), confirm that women lawyers still face discrimination.

649 As part of the Law Commission’s contribution to the May 1997 Gender Equity seminar for all New Zealand judges, the results of the two most recent surveys (above) were analysed and presented at the seminar together with contemporary examples, provided by New Zealand women lawyers in submissions to this study, of the discriminatory practices identified in local and overseas research on women in the legal profession. Also presented were many more examples, again provided in the course of this study, of the ways in which “gender bias” can adversely affect women lawyers, parties and witnesses in proceedings in New Zealand’s courts. (For the published text of that analysis see Morris J, 1997) For present purposes, it suffices to repeat just some of the examples provided by New Zealand women lawyers of the barriers to their full participation in the legal profession.

“I am given work of lesser value than the male staff solicitor who is junior to me. I am paid less than the male staff solicitor. I am given less court work than him. I’ve been told there’s nothing worse than a smart woman. I’ve been told by one of my male partners ‘I won’t be beaten by a sheila’. The support staff won’t assist me as they assist the men and I am given no help addressing this. I have to do my own typing sometimes, and filing, which no male here would have to do. Then I am told I don’t earn enough fees. I am not allowed to address letters to both husband and wife – only to the husband. No matter how I dictate them, my memos to older males are always to Mr X from [Susan Y] – ie, they sign me off using my first name. My senior partner walked into my office with this [questionnaire] and said ‘You can answer this crap’ – so I have! Thank you for the opportunity. I know I am good at my job. I know I am unlikely to get where I intend going because I am female.” – Submission 293

“I wanted to try litigation in my firm. I was told that as I looked young and was attractive I ‘would get ripped to bits in court’ because male lawyers wouldn’t take me seriously.” – Submission 311

“Good women are forced out of this profession because of male attitudes to family law and female solicitors. I don’t know what can be done to help the situation because access to justice is really access to a male paradigm. The Family Court goes some way to addressing this paradigm but it doesn’t address the social values behind it. We all do what we can and I try to take a holistic attitude to my work and never judge any woman for her decisions . . . I think my clients get a good deal from me personally. The reality is that I’m thinking of getting out. I’m pissed off with the whole system of family law being viewed as second rate. Always getting difficult clients etc, etc. I don’t earn enough to make it worth it. I would be better off being a teacher. That makes me sad because women need women like me, and the profession makes it too difficult.” – Submission 319

“There is still a body of practitioners who hold the opinion that women do not belong in the legal profession. As a barrister I was recently seeking chambers when I visited one set and was introduced to one of the other members as coming to view the room. The other member’s reply was ‘Is she the new cleaner?’ and then he passed a number of sexual remarks. While sexism isn’t usually this blatant it nevertheless does exist.” – Submission 229

“I have experienced a disdain from some older members of the judiciary, yet seen those same judges be matey with other, male counsel. I’ve got the feeling I’ve been frozen out although this is never directly said – it’s very difficult to put your finger on or draw attention to. Sometimes this unwelcoming attitude has made me question my ability when in fact there has usually been no need to do so.” – Submission 104

Race discrimination in the profession

650 There is no detailed research available about the experiences of Mäori, Pacific Islands and other minority lawyers, but the information which does exist suggests that these groups too experience discrimination. For example:

• In the research conducted for the Auckland District Law Society’s report Towards 2000 – Implementing EEO, Pacific Islands lawyers were found to be concerned that their particular skills were not valued within the profession, and that their access to quality work was limited. They perceived that their prospects of advancement were poor and that procedures to deal with race discrimination were lacking. (Gatfield, Towards 2000, Vol 2 1996, 75–76)

• In the New Zealand Law Society Poll of Lawyers, 16 percent of lawyers said that there were not equal opportunities in their law firms for people from racial minorities. Among younger lawyers this view was more common, with almost 25 percent of lawyers aged up to 35 stating that there are not equal opportunities within their firm for people from racial minorities. (Poll of Lawyers, 111–113)

• The E-DEC report also found that many practitioners have a real concern about discrimination. (E-DEC Background Report, 186)

651 During this study, Pacific Islands women and, particularly, Mäori women referred frequently to the under-representation in the legal profession and judiciary of both women and men from their own groups. This fact was seen to be part of the evidence of the distance that lies between the women’s values and lives and those of the justice system and its personnel. Among Mäori women, the criticism that non-Mäori lawyers and judges have an inadequate appreciation of matters integral to Mäori culture was couched as part of the broader criticism of the justice system’s limited ability to understand and respond to the needs of Mäori in ways which are consistent with the Treaty of Waitangi. (See further, Justice: The Experiences of Mäori Women: Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53), chapter 3)

“I would like to see some of the judges in this area retired early. Only because they have no perception about how the other half lives. For us Mäori the judges have no knowledge of our culture. God, the way they pronounce our names is like a loud screeching noise being placed in our ears.” – Transcript of hui with Mäori women, Rohe 9

“Pakeha judges do not understand what land means to Mäori. If they had some people who know about Mäori land ownership that would have been better.” – Transcript of hui with Mäori women, Rohe 3

The need for diversity in the judiciary

652 The credibility of the judiciary depends upon judges being equipped, and being seen to be equipped, to deal with all New Zealanders fairly. New Zealand’s judges are even less representative of the New Zealand population than are practising lawyers. Detailed information about the ethnicity of judges is not available, but it is estimated that more than 90 percent of judges are Pakeha, with approximately 5 percent Mäori and a smaller percentage from other ethnic groups.

653 One in eight judges is a woman. Of the 23 women judges, four are permanent judges of the High Court. (There are 38 permanent judges in the High Court and Court of Appeal and six temporary High Court judges.) The other 19 women are judges of the District Court, which has 113 judges in total. One of the five Masters of the High Court is a woman. There are no women judges in the Mäori Land Court, the Employment Court or the Court of Appeal.

654 The profile of women judges differs from that of their male counterparts in several respects. On average, women judges are younger and are likely to have been more recently appointed. Among women judges who live with their husband or partner, 92 percent of their partners are in full-time paid work and 8 percent are engaged in unpaid work. However, among male judges who live with their wife or partner, 23 percent of their partners are in full-time paid work and 52 percent are engaged in unpaid work. (Barwick, Burns and Gray, 66)

Why the lack of diversity in the judiciary?

655 New Zealand judges have been surveyed on why they consider women are under-represented in the judiciary. The main reason given by male judges was that the structure of the legal profession works against the advancement of women, and prevents them from gaining the experience necessary to become a judge. The prevailing view was that this occurs because women are not attracted to areas of law, such as criminal law and commercial work, which enable a lawyer to gain the experience traditionally valued in candidates for the judiciary. The other two reasons most commonly given by male judges were that the composition of the bench reflects the way society works and the relative importance given to the roles of men and women; and that women are reluctant either to undertake the travel required of judges or to relocate to take up judicial appointment, largely because they are reluctant to ask their partners to move. (Barwick, Burns and Gray, 28)

656 Women judges also identified the nature of the legal profession as a primary reason for the low proportion of women in the judiciary. But, unlike the men, some of the women felt strongly that there is not only systemic discrimination within law firms but also some direct discrimination which makes it more difficult for women to obtain good work. They also mentioned the profession’s overwork of “bright young graduates”, saying that it causes many women, at about age 30, to reject such an unbalanced life.

657 The women judges also attached more importance than the men to the informality of the judicial appointments process. In particular it was thought that the “profile” which a lawyer needs in order to be considered for appointment – for example, by being active in a range of law-related activities is more difficult for women to obtain than men because of women’s responsibilities for childcare and domestic tasks. The isolating nature of judges’ work, and the difficulties of combining it with a family, were also considered to make judicial appointment less attractive to women than to men. The reluctance of women to relocate to take up judicial appointment was thought by women judges to stem from women’s reluctance to lose the support systems they had established in order to manage the demands of a job and often family as well.

658 The final issue which the women judges, unlike the men, talked about “at length” was the culture of the judiciary. This was described as being strongly male and, for women, alien for the reason that it is not a co-operative and supportive environment in which the women would prefer to work. (Barwick, Burns and Gray, 29–30)

Recent initiatives

Judicial training

659 Since this study began, there have been a number of relevant developments in the judiciary. In fact, this study was officially launched together with the establishment of the Judicial Working Group on Gender Equity by the Courts Consultative Committee. That group commissioned research on judges’ perceptions of gender equity in society, the law and the courts and organised a two-day judicial training seminar in May 1997 which was attended by nearly all New Zealand’s judges. The information gathered in the course of this project had a substantial impact on the content of that seminar, which was overwhelmingly rated by the judges who attended as being valuable to their work.

660 At the time the seminar was organised, it was intended that it would be followed up in the work of the Institute of Judicial Studies, which was then in the process of being established. However, funding for the institute was unavailable in the 1997/98 year. With funding now available for the 1998/99 year, and a strong commitment within the judiciary to continuing education, the opportunity for gender issues to be pursued in future judicial training programmes has been restored. So too has the opportunity for educational initiatives designed to increase judicial awareness and skills in relation to the Treaty of Waitangi and cross-cultural issues, which the institute is currently developing.

661 Before the advent of the Institute of Judicial Studies there had been since 1988 an annual orientation programme for new District Court judges. In 1992 that programme was extended to serve new judges from all New Zealand courts. Australian and Pacific Islands judges have also attended regularly. The purpose of the programme has been to enhance the quality of justice delivered by the courts by:

• providing up-to-date information on changes to the law;

• enhancing judicial skills; and

• providing information on the social context of the law.

662 Since the programme’s inception, issues related to women’s access to the courts and gender have been included. The last two orientation programmes have included a substantial focus on gender equity, the dynamics of domestic violence and the needs of victims. Both have utilised the research and analysis conducted in the course of this project. The success of those efforts may be gauged by the fact that the Employment Tribunal and the Tenancy Tribunal incorporated similar sessions in their own recent annual conferences. In the last three years, the orientation programmes have also included a substantial focus on Mäori cultural issues. Again, the success of those efforts can be gauged by the fact that some of the individual courts and tribunals have incorporated similar sessions in their own annual conference programmes.

Judicial appointments

663 In 1997, at the instigation of the Chief District Court Judge, the process of appointing District Court judges was changed to allow greater transparency. In place of the previous process, by which the Minister of Justice made appointments after considering the recommendation of the Chief District Court Judge, interested candidates are now able to put themselves forward for selection or their name may be put forward by one of a number of individuals or groups from whom the Minister of Justice seeks nominations. The range of groups consulted is broad, including Principal Court Judges, Law Societies, universities, government departments, community law centres and other community groups. This is intended to ensure that the pool of candidates is socially diverse. Short-listed candidates are interviewed by the Minister of Justice or by the Chief District Court Judge and/or the appropriate Principal Judge if it is a Family or Environment Court position and by the Secretary of Justice. The Minister then makes a decision and reports to Cabinet.

664 Late in 1998, the Attorney-General announced that a similar process is to apply to the appointment of all judges, except the Chief Justice and Mäori Land Court judges. For each vacancy, a short-list of applicants will be determined by a panel of lawyers and judges. The Attorney-General will then recommend to the Governor-General to make an appointment, guided by the panel’s recommendation. The Ministers of Justice and Labour will no longer have a role in recommending these appointments. The Chief Justice will continue to be appointed by the Prime Minister, and the Mäori Land Court judges will be appointed, as now, by the Minister of Mäori Affairs. Each of these changes in the process by which judges are appointed has followed considerable discussion within the legal profession. The Women’s Consultative Group of the New Zealand Law Society has been particularly active in promoting the changes as means by which women’s representation in the judiciary may be increased.

665 There has also been recent debate, initiated by the Chief District Court Judge and the Women’s Consultative Group of the New Zealand Law Society, about allowing the appointment of part-time District Court judges. The idea of part-time judicial appointments is also under serious consideration in Canada and Australia. One of the reasons why it is thought this would attract New Zealand women lawyers into the judiciary is that at present nearly all appointees outside of Wellington and Auckland must leave their home area to take up their judicial duties. The possibility of part-time appointments would give greater flexibility to women who are reluctant to relocate themselves and their families permanently. (LawTalk 510, 16 November 1998, 9)

666 The process for complaints against judges has also been reviewed to make it more transparent and, on the advice of the judiciary, includes a procedure by which a lay observer can recommend reconsideration of a complaint which has been considered by the head of the relevant court to be without merit. The Attorney-General will become involved in cases so serious that removal of a judge is possible. In those cases, a panel of retired judges will consider whether to recommend removal and, if so, the Attorney-General will be required to take the matter to Parliament. (LawTalk 510, 16 November 1998, 9)

667 The judiciary has shown considerable leadership in the matter of improving judges’ awareness of gender issues and developing initiatives to increase the representation of women in the judiciary. The research and judicial training conducted by the Judicial Working Group were ground-breaking, both in their content and in involving all judges in all courts. They have provided a solid foundation for the launch of related initiatives, such as the moves to ensure greater transparency in the judicial appointment process and the proposal to make judicial appointments more amenable to women’s lives and values. The judiciary’s efforts have also been influential in ensuring that the 1996 New Zealand Law Society’s triennial conference programme included keynote speakers and other presentations on gender bias in the legal profession and in the law. The 1999 New Zealand Law Society’s conference programme also includes a focus on gender issues in its plenary and other sessions, with one of the international speakers at the judicial seminar returning to give a keynote address at the conference.

Conclusion

668 There is a common belief that an increase in the diversity of the legal profession will be achieved by women, Mäori, Pacific Islands and other minority lawyers on the basis of their own efforts, and that, with time, the situation will improve. This underestimates the force of the systemic barriers which under-represented groups experience in their attempts to participate in long-established institutions, such as the legal profession and judiciary, which have been designed without particular attention to those groups’ values and needs. The Canadian Bar Association commented in its report on women in the Canadian legal profession:

The view that time and the example set by the growing number of able women lawyers will dispel discrimination is a seductive one. It absolves individuals and the profession from taking action. There is little evidence, however, within the profession or elsewhere, that the laissez faire approach is effective. (Touchstones for Change, 269)

669 The 1996 Poll of Lawyers found that a majority of New Zealand lawyers (58 percent) believe it is more difficult for women than men to make progress in the profession, and that this is a problem for the profession as a whole. In fact the great majority of women lawyers (71 percent) believe this to be a major problem, while only 17 percent of men lawyers regard it as seriously. When asked whether there were equal employment opportunities for women in their own firms, just under a third of women lawyers (29 percent) said there were not, compared with only 10 percent of the men. (Poll of Lawyers, 104, 113)

670 As noted earlier (para 648), complete reports have been written about the discrimination experienced by women lawyers, and about the most likely solutions and strategies to overcome it. They offer considerable guidance on the directions the New Zealand profession could take. There have been various efforts made in recent years to improve the representation of minority groups in the legal profession and to reduce the barriers to women’s full participation in all areas and at all levels of legal work (see paras 682–686). However, this study supports the conclusion that the pace of change must be increased. The primary concern must be for the diverse clients and potential clients of New Zealand’s lawyers. They need the services of a profession whose members are diverse and proud to be so. But, in order to flourish, women lawyers and lawyers from minority groups also need an environment which values diversity.

671 Again, using the principles and process which this study has identified as essential to promote the just treatment of women by the justice system, any strategy to increase the diversity of the legal profession must include as key components:

• consultation with women and community groups about the assistance that is necessary to achieve that goal;

• the development of diverse measures to reach under-represented groups;

• co-ordination of efforts to gather information and develop policies for the implementation of those measures; and

• monitoring the effectiveness of the efforts taken.

672 In light of the predominance of concerns voiced in this study about the substantial shortage of Mäori and Pacific Islands lawyers, and the need for specific initiatives to address discrimination in the legal profession, the following sections focus on two institutions in which these strategies must be implemented as a priority: law schools and law societies.

The role of law schools

673 For some groups, most notably Mäori and Pacific Islanders, there is still a need for greater representation at law school to ensure that increased numbers enter the legal profession. While Mäori make up 14.5 percent of the New Zealand population, only 1.7 percent of lawyers identify as Mäori. And while 4.8 percent of the population are Pacific Islanders, less than 0.7 percent of lawyers identify as Pacific Islanders.

674 The geographic distribution of both population groups is uneven, making some universities’ law schools more attractive than others to potential students. For example, 58 percent of Mäori live in the northern half of the North Island, with Gisborne, Northland, Bay of Plenty and Waikato having the highest proportions of Mäori in their regional populations. Pacific Islands people are overwhelmingly concentrated in Auckland, Wellington and Christchurch: 80 percent of Pacific Islands people live in those three metropolitan areas.

675 Between 1991 and 1996, the total number of Mäori students enrolled in

any university course in New Zealand more than doubled (an increase of 103 percent). The number of Pacific Islands students increased by 116 percent in the same period. (Ministry of Education 1997, 9) The available data on enrolments of Mäori and Pacific Islands students at each of the five law schools in 1997 (and with 1998 figures for two schools) are as follows:

TABLE 7: Percentage of Mäori and Pacific Islands University Law Students

1997 Mäori Pacific Islanders

Auckland 11.4 percent (1998 = 11 8 percent (1998 = 9

percent) percent)

Waikato 23 percent 3.7 percent

Victoria 11 percent 2.8 percent

Canterbury 9 percent 1.5 percent

Otago 5.5 percent (1998 = 8.7 2.6 percent (1998 = 2.9

percent)* percent)*

* The 1998 Otago ethnicity figures will be inflated by the fact that students can specify up to three ethnicities, all of which are included in the figures supplied.

676 Most of the law schools have initiatives in place to increase the number of Mäori law students. For example, Auckland, Victoria and Canterbury have quota systems for Mäori students. Recruitment drives targeted at Mäori students are run annually at Auckland and Victoria. Waikato has a particularly close relationship with the Tainui people and has a range of means by which Mäori students are recruited.

677 All of the law schools provide some form of support for their Mäori law students. For example, there are Mäori Law Students Associations at all law schools, and four of the five schools provide special tutorials for, and employ additional support staff to assist, Mäori students. Not all law schools monitor the effectiveness of these programmes. At least one law school has an annual scholarship available for a Mäori student, sponsored by a law firm. It is generally agreed that Mäori academic staff provide invaluable support to Mäori students. There is, however, considerable variation among the law schools, especially between those in the North and South Islands, in the proportion of the academic staff who are Mäori.

678 There are fewer initiatives aimed at encouraging Pacific Islands students to study law. Auckland and Victoria law schools target Pacific Islands students in their recruitment drives. Both also provide support at law school in the form of Pacific Islands Law Students Associations, supplementary tutorials and additional support staff. Victoria has recently assessed the effectiveness of its initiatives; Auckland has an ongoing monitoring system in place.

679 The government has recently identified as a goal for tertiary education the need to improve the participation and achievement of currently under-represented groups. (Ministry of Education 1998, 9) It is likely that this will provide an incentive for the collection and analysis of better information about those groups than is currently available. As well, it may lead to increased interest in the comparative success of the different strategies that have been tried at each of the law schools. At present, there are few opportunities or incentives for the law schools to learn from one another about such matters.

Recommendations

680 To increase the diversity of the group of people who will enter the legal profession in the future, it is recommended that:

• law schools at which Mäori and/or Pacific Islands students are under-represented review their initiatives in consultation with Mäori and Pacific Islands people in their communities;

• those law schools develop new initiatives in order to attract Mäori and/or Pacific Islands students, utilising all relevant sources of information, advice and assistance, including community sources, to help in the support of those students.

The role of law societies

[A] number of lawyers felt that women, gay and lesbian, and ethnic minority lawyers were being held back in their career advancement and felt that law societies failed to provide leadership on EEO issues. It was felt that law societies should be more active in promoting EEO issues and should be active in trying to bring about changes within law firms which would improve the position of women lawyers, gay and lesbian lawyers, [and] lawyers from particular ethnic groups. (E-DEC Background Report, 80)

681 The Poll of Law Firms conducted in 1996 revealed that half of all New Zealand law firms did not have an equal employment opportunities (EEO) policy of any kind, formal or informal. Further, only 6 percent of law firms had a formal – that is, documented – EEO policy. The other 44 percent of firms had an informal policy, that is, one which was described as being known but not documented. Large firms (11 or more partners) were more likely than others to have formal or informal EEO policies. Only 20 percent of law firms had a designated person responsible for EEO, and just 3 percent had conducted a review of their EEO policy. (Poll of Law Firms, 19)

682 Largely as a result of the information available about the experience of women in the profession, the New Zealand Law Society, including its Women’s Consultative Group, some district societies and women lawyers’ groups, are actively encouraging the implementation of EEO within the legal profession. The New Zealand Law Society’s monthly magazine LawTalk gives very good coverage to EEO issues as they relate to the situation of women in the profession. Over the past 18 months, for example, there have been articles explaining the benefits of EEO, including one publicising a large law firm’s newly adopted paid maternity leave policy; articles summarising the content of papers presented at the 1997 Judicial Gender Equity seminar and the Prime Minister’s 1998 Ethel Benjamin commemorative address; and articles publicising the newly established “friends’ panel” of women lawyers (who are available for confidential and anonymous discussions of work problems), and the mentoring programme established by the Wellington Women Lawyers’ Association.

683 The society also supports the work of its Women’s Consultative Group, which is currently preparing a report outlining the steps the society should take to promote EEO in the profession. It has been noted earlier that the group has also devoted considerable recent effort to making judicial appointments processes more transparent and promoting the possibility of part-time appointments to the District Court bench. (NZLS 1997 Annual Report, LawTalk 494, 30 March 1998, 15)

684 In the 14 law society districts, the activities of the Auckland and Wellington societies warrant particular mention. The Auckland society is now implementing a five-year EEO management plan, which was devised as a result of an extensive project commissioned by the society in 1995. EEO workshops, to be run over a period of 15 months for 11 large and medium sized Auckland law firms, have recently been launched. The production of resource materials, intended to be applicable and available to all law societies around the country, is part of that initiative. The Law Foundation has provided a significant part of the funding for these projects.

685 As part of its EEO plan, in March 1998 the Auckland society conducted its first two-hour seminar, “Multi-Cultural Issues in Everyday Practice”. The seminar, led by five lawyers from different ethnic groups (Chinese, Tongan, Samoan, Mäori and Fijian-Indian), was designed to impart understanding and appreciation of six matters:

• clients’ perceptions of lawyers, courts and the legal system in the multi-cultural community;

• matters of etiquette and social convention which affect solicitor-client relations, and the conduct of business;

• influences on the client’s legal affairs by the minority community and institutions;

• dispute resolution within minority groups – in court and out;

• beliefs and customs affecting legal and business matters; and

• how specific types of legal matters may be affected, ie, family, adoption, commercial, wills/estates, conveyancing, criminal and others. (Northern Law News, Issue No 8, 1998)

686 The Wellington society adopted an EEO policy several years ago, and is currently canvassing Wellington law firms to identify how many have EEO policies, whether they need help in implementing them and whether there is support for the society’s Council promoting EEO policies among employees. The information gathered will determine whether a project to promote EEO policies in law firms will be pursued.

687 The law societies have a central leadership role to play in changing the attitudes, policies and practices of the law profession which reduce women’s opportunities to participate in all of its activities. To date, however, many of the societies have played a limited role and the efforts of the societies which have been active have not been without controversy. In particular, some lawyers question whether the New Zealand and district law societies have a role in promoting non-discriminatory practices in lawyers’ employment. In light of the information gathered in this study, the answer must be that action by the societies is wholly consistent with their statutory functions set out by s 4 of the Law Practitioners Act 1982, and, in particular, with their functions to:

• promote the interests of the legal profession and the interests of the public in relation to legal matters;

• promote and encourage proper conduct among members of the law profession;

• suppress illegal, dishonourable, or improper practices by members of the legal profession; and

• preserve and maintain the integrity and status of the legal profession. (s 4(1)(a)–(d))

688 It is considered to be highly likely that the profession will continue to have a vital interest in the promotion of non-discriminatory practices. Further, it is considered to be essential for its credibility with the diverse communities which make up New Zealand society that it does so.

The role of law firms

689 It has been argued that the setting and monitoring of compliance with standards of non-discriminatory practice is a matter for individual law firms, and not a proper role for the societies. In fact, it is a matter for both. Law societies have always had some regulatory control over law firms, and the Human Rights Act 1991 sets clear standards for employers with regard to non-discrimination in employment.

Recommendations

690 In light of the predominance of women’s concerns for increased diversity in the legal profession, the following are considered to being among the initiatives most urgently needed to ensure the legal profession is truly reflective of the society it serves. It is recommended that:

• the New Zealand Law Society, together with the district law societies, collect information about the effects of discrimination on minority and ethnic groups;

• the New Zealand Law Society and district law societies work collaboratively to develop a coherent and comprehensive policy for the implementation, development and monitoring of EEO in the legal profession;

• the EEO policy incorporate targets for change so that progress can be monitored;

• the New Zealand Law Society consider appointing an EEO resource person to promote and monitor the progress of the profession towards the attainment of its planned targets;

• law firms demonstrate compliance with the EEO policy and employer obligations by the development and implementation of written EEO policies.

691 Having examined, in this chapter, issues of choice and diversity among private lawyers, the next chapter examines diversity in service provision by private lawyers.