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Halting the Profession's Female Brain Drain While Increasing the Provision of Legal Services to the Poor: A Proposal to Revamp and Expand Emeritus Attorney Programs
Okla. City U.L. Rev. (2012)
  • Claudine Pease-Wingenter, Phoenix School of Law

Although gender parity has essentially been achieved in the law school and associate ranks for a while, women overall still only represent about a third of the entire legal profession. There are multiple reasons for this continuing underrepresentation, but a significant contributor is the difficulty in simultaneously balancing new careers and young families.

Most lawyers enter the profession in their late twenties. About the same time, women's fertility begins to wane. As a result, there is a lot of pressure for female lawyers to start families while they are still relatively new in their careers. Because women continue to bear a disproportionate share of caregiving in our society, female lawyers often end up taking a break from the profession. Unfortunately, once they have left, it can be difficult to return. This situation results in a significant brain drain from the legal profession and continued gender imbalance in the attorney ranks.

Meanwhile, there is a scandalously large "justice gap" between those who can and those who cannot afford access to legal representation to solve legal problems. Only about 20% of the legal problems of the poor are addressed with the assistance of counsel. That is an intolerable gap in a country that purports to be founded on the rule of law. Indeed, our legal system is not functioning if only the affluent have meaningful access to justice. However, due to the economic problems that have plagued us in the twenty-first century, it is not realistic to hope for more funding. Creative new solutions are needed.

If women on a career hiatus due to caregiving responsibilities could be encouraged to do pro bono, there would be a significant source of pro bono services to help narrow or even close the justice gap. Moreover, such engagement could minimize the professional isolation felt in such hiatus periods and could ultimately encourage women to reenter the profession full-time. Unfortunately, because of the high cost to maintain one's law license, there are significant financial disincentives to do pro bono when one is on a hiatus and one's household income is greatly reduced. The cost of bar dues, attorney taxes and other mandatory fees, and MCLE compliance add up and can result in an unemployed lawyer having to pay many hundreds of dollars for the privilege of doing pro bono. That is not realistic on a tight budget.

Similar financial disincentives have also traditionally prevented retirees from doing pro bono, but in recent years many jurisdictions have enacted emeritus attorney programs to waive many or all such costs to maintain one's license. This article proposes that such emeritus programs be revamped and expanded greatly to empower lawyers earlier in their career to provide pro bono services while incurring little or no cost to maintain their licensure. The article ends with a serious of specific and targeted proposals to be incorporated in such programs.

This article has already been extensively peer reviewed. It has been revised by the author based on the insightful suggestions of numerous scholars: Dr. Francine Banner (Phoenix School of Law), Professor Beth Burkstrand-Reid (University of Nebraska), Ms. Charic Daniels (private practice), Professor Stacey Dowdell (Phoenix School of Law), Professor Julie Hill (University of Houston), Professor Anthony C. Infanti (University of Pittsburgh), Professor Ilya Iussa (Phoenix School of Law), Professor Michelle M. Kwon (University of Tennessee), Professor Lisa R. Pruitt (University of California-Davis), and Professor Keith Swisher (Phoenix School of Law).

Publication Date
Citation Information
Claudine Pease-Wingenter. "Halting the Profession's Female Brain Drain While Increasing the Provision of Legal Services to the Poor: A Proposal to Revamp and Expand Emeritus Attorney Programs" Okla. City U.L. Rev. Vol. 37 (2012)
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