We’ve all heard the bad lawyer jokes, (i.e. What’s the difference between God and a lawyer? God doesn’t think he’s a lawyer.) We’re all aware that lawyers may not be the most publicly loved section of society and these notions of unpopularity are part and parcel of the role of a lawyer. However, it seems that once the jokes are turned toward female lawyers, they seem to be more critical, more personal and more pointed. For instance the popular female lawyer joke: What’s the difference between a female lawyer and a pitbull? Lipstick.
More recently with the trial of Jian Ghomeshi, and his defence counsel Marie Henein, and in the more extreme case of Hillary Clinton, critiques of the female lawyer’s professional performances were rife with comments on their attire, their personalities and their gender. Alice Woolley, a professor at the Faculty of Law, University of Calgary and President of the International Association of Legal Ethics, and Elysa Darling, a lawyer in Calgary, recently published an article titled “Nasty Women and the Rule of Law”.1 The article tries to articulate the reasons why female lawyers tend to receive more personal and gendered criticism than their male counterparts. The article’s thesis is that attacks on female lawyers arise from the intersection between the normative structure of the lawyer’s role and sexist stereotypes of females.2
The authors begin by contextualizing the role of the lawyer within the rule of law. The authors argue that the role of the lawyer is to pursue the interests of their clients within the bounds of legality, even where doing so inflicts harm or violates valued norms of ordinary morality.3 The classic example of this is the public disdain for lawyers who represent alleged murders or rapists. The criminal defense lawyer’s role in the justice system is to zealously advocate for a client’s best interest, (i.e. acquittal), despite the client’s allegedly egregious acts. A lawyer in the role of the zealous advocate will always run contrary to someone else’s deeply held values, moral or otherwise.4
This role of agitator or zealous advocate becomes particularly dissonant when combined with the gender stereotypes about the expected and appropriate conduct of women. In general we believe that men ought to be focused on achievement, to “take charge” and to be autonomous and rational.5 Women, on the other hand, ought to reflect communal qualities, to be concerned about others, to seek early resolution and to be emotionally sensitive.6
The gender stereotypes for women are in direct conflict with the expectations and position of the lawyer in our legal system. The authors summarize the conflict as follows:
By virtue of her role – pursuing client interests within the bounds of legality – a lawyer is required to be competent, authoritative and rational. She acts in the interests of (the) client, not in the interests of others, and will not be deferential, generally concerned with the interest of others or act with emotional sensitivity, except insofar as doing any of those things advances her client’s interest within the bounds of legality. But by acting in this way, she not only violates our expectations of what women can do, she also violates our standards about what women ought to do.7
As a result of this conflict between the traditional role of a lawyer and the traditional role of a woman, the critiques of female lawyers are harsher and more personal, the authors argue, because being a good lawyer means being a bad woman.8 The role of a lawyer itself violates gender norms for women. Female lawyers may be seen as less suitable for the role and may find the practice of law hostile as a result.9 The authors do not argue that every female lawyer experiences personal and vicious attacks because of her role as a lawyer; however, they argue that every female lawyer is at risk of receiving additional and harsher critiques as a lawyer due to her gender.10
The authors recognize that there have been efforts to increase diversity in the profession of law and to support female lawyers. Yet they point out that “…even if women have better mentoring, or opportunities for flexibility and work-life balance, that will not necessarily place them on the same footing as men in relation to professional opportunities or advancement.”11
Ultimately, the authors did not research and write their article to preach further doom and gloom about the legal profession. The article is to bring light to the issue of gender stereotypes, especially in the legal profession and to challenge the way that we view and critique female lawyers. The authors conclude with the following:
[W]e also think it’s important for people to see it – to see the gender stereotypes that underlie how we perceive, discuss and criticize women lawyers, and to appreciate the costs that that imposes for the particular women subject to it, but also to women lawyers as a whole
.…
[T]he profession as a whole needs to be aware of the unique costs to women in occupying the lawyers’ role, however central that role is to the accomplishment of the rule of law in a free and democratic society.”12
1 Alice Wooley and Elysa Darling, “Nasty Women and the Rule of Law”, January 21, 2017, University of San Francisco Law Review. (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2903214)
2 Supra, at page 3.
3 Ibid.
4 Supra, at page 22.
5 Supra, at page 23.
6 Ibid.
7 Ibid.
8 Supra, at page 26.
9 Ibid.
10 Supra, at page 28.
11 Supra, at page 30.
12 Supra, at page 32.
Carly Romanow is the Programs Director and Staff Lawyer at Pro Bono Law Saskatchewan. She is active in the legal community; where she is the South Saskatchewan Chair of the CBA Women Lawyers Forum and a Director on the Board of Regina Planned Parenthood.