In Legal Profession, Not All Roles Created Equal

Government data shows diversity, especially gender makeup, varies widely between legal profession segments

An 8th Circuit Court of Appeals ruling held up a lower court’s award of $106 million in a decades-long case involving bad actors and a bank's involvement in a Ponzi-like scheme.

Discussions about diversity in the legal profession tend to focus on lawyers in private practice: Women and people of color fill more associate positions than partner positions, and diversity is even more scarce in equity and managing partner ranks. But data from the Bureau of Labor Statistics show diversity varies even more among other segments of the profession, such as legal support roles and judicial employees. 

According to BLS data from 2019, paralegals and legal assistants have the starkest difference from lawyers in gender makeup of the professions. The statistics show women make up just over 36% of all lawyers, but nearly 9 in 10 paralegal or legal assistant positions. Racial differences are noticeable but not nearly as large: The data shows 77.1% of paralegals and legal assistants are white compared to 86.6% of lawyers. 

Kyle McEntee, a co-founder of the Law School Transparency think tank that focuses on diversity and student debt, said demographics among legal support roles may be a different conversation than diversity of the pipelines that feed into lawyer ranks in the legal profession. Paralegal and legal assistant careers are distinct paths, and people who choose them do not necessarily intend to eventually become lawyers. 

“I would think that it’s more just systemic about the kind of work we societally expect women to do,” he said. 

Data from the BLS about support roles in other professions provide a clue about the comparison of legal support role demographics to support roles in other professions. For example, health care support occupations such as medical assistants and physician assistants are nearly all majority-women professions, while women make up only 40% of physicians and surgeons.

Meera Deo, the director of the Law School Survey of Student Engagement and a professor at the Thomas Jefferson School of Law, said the few different approaches people have to their career paths in legal support roles may affect the likelihood of their desire to go to law school. She said paralegals or legal assistants who are interested in the legal profession but don’t have the time or financial resources for law school may be likely to stay in their support roles, especially if their jobs allow them to perform many functions of a lawyer. But those working in support roles to test their interest in the legal profession may be more likely to eventually go to law school.

She added that the role of legal support jobs in the broader conversation about diversity in the legal profession pipeline may implicate the financial accessibility of law school. 

“Even though I don’t think of those positions as traditional pipeline feeders to law school, I still wouldn’t count out that people in those roles could be interested in becoming lawyers and could be really excellent lawyers given an opportunity, especially supported financially and otherwise to get through law school,” Deo said.

Women in the Judiciary

The BLS data shows women represent a slight majority among judicial workers at 52.5%. The specific data about judicial workers may raise as many questions as it answers, because the survey doesn’t specify what jobs “other judicial workers” in the category includes, such as clerks of court and librarians. 

But given the 17-point difference in gender makeup between judicial workers and lawyers in aggregate, it’s worth asking whether the judicial data implicates the particular state judicial systems or judge selection processes on diversity. 

Diane Johnsen, a former judge on the Arizona Court of Appeals who retired in January and now serves as a special projects attorney for the court, authored a 2016 article in the San Diego Law Review called “Building a Bench” about the makeups of state appellate courts broken down by how the state chooses judges. Her research found varied selection methods do produce differences in characteristics of appellate judges, such as demographics, education and previous legal experience.

According to the article, appellate courts tend to have slightly higher rates of women than among practicing lawyers. 

Data shows merit selection processes tend to disadvantage women compared to judicial elections. Johnsen’s article, “Building a Bench,” theorizes that may happen because the pipelines feeding into backgrounds and characteristics that merit selection seems to put weight on may favor men. Evidence suggests merit selection favors candidates with degrees from ranked law schools, and male appellate judges chosen by merit selection are more likely than their women colleagues to have had private practice or business law experience. 

The article theorizes that women who have spent less time in business law practice may be less likely to have formed relationships with clients and the legal community that can influence merit selection. 

But Johnsen said it’s difficult to draw definite conclusions about why judicial selection methods appear to correlate with gender parity. Qualities of a good judge seem easy to name — integrity, honesty, intelligence — but difficult to quantify. 

“The criteria for choosing a judge, they’re not objective. It’s hard to quantify, how smart is someone? How committed to justice is someone?” she said. “Those are hard things to put numbers on, aren’t they? So, they rely on interviews and letters of recommendation and phone calls from supporters; comments by people who have seen the applicants in the arena. Those are all very subjective.”

Whatever the mix of factors that correlates gender parity with selection method, Johnsen said the finding of women’s underrepresentation in merit selection surprised her. 

“I thought that the point of merit selection was to wind up with the best-qualified judges, and I did not assume going in — for that reason — that those states would end up disfavoring women. I wouldn’t have thought that,” she said.

—Julia Cardi

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