‘i just drifted into it’: constraints faced by publicly funded family lawyers

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‘I just drifted into it’: constraints facedby publicly funded family lawyersAngela Melville a & Karen Laing ba School of Law , University of Manchester , UKb School of Geography, Politics and Sociology , NewcastleUniversity , UKPublished online: 28 May 2008.

To cite this article: Angela Melville & Karen Laing (2007) ‘I just drifted into it’: constraints facedby publicly funded family lawyers, International Journal of the Legal Profession, 14:3, 281-300,DOI: 10.1080/09695950802015864

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‘I just drifted into it’: constraints faced by

publicly funded family lawyers

ANGELA MELVILLE� & KAREN LAING��

�School of Law, University of Manchester, UK��School of Geography, Politics and Sociology, Newcastle University, UK

ABSTRACT This paper draws on interviews with English family lawyers who do publicly

funded work, and examines their reasons for entering family law. Generally, lawyers did not

deliberately choose to enter family law, and instead explained that they ‘drifted’ into the field.

On closer inspection, however, rather than ‘drifting’ into family law, it would appear that the

careers of publicly funded family lawyers are strongly constrained by structural and cultural

factors. These findings have important implications for attracting and retaining family lawyers.

1. Introduction

The genesis for this paper occurred during an observation of a training session for

publicly funded family lawyers offered by the Legal Services Commission. One of

the trainers had commented that there must be something special about lawyers

who ‘choose’ to go into family law. At lunch afterwards, several lawyers commented

on the use of the term ‘choice’, explaining that as far as they were aware, lawyers

do not choose to enter family law. This paper examines solicitors’ reasons for entering

publicly funded family law practice and, in particular, argues that these solicitors have

had little control over their career trajectories. It would appear that rather than having

the ability to exercise individual choice, the options available to publicly funded family

lawyers concerning their career direction are constrained by structural and insti-

tutional barriers.

There is little doubt that the legal profession is profoundly hierarchical and that

the lawyers who practise in relatively low prestige fields, such as family law, face bar-

riers to progression in their careers. Heinz and Laumann’s (1982) classic study on the

American Bar Association concluded that the legal profession is divided into two dis-

tinct ‘hemispheres’ depending on the types of clients that they are working with.1

Lawyers either cater for organisations such as large corporations and take a predomi-

nantly commercial approach, or they cater for individuals offering advice and services

for personal legal problems.

INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION,VOL. 14, NO. 3, NOVEMBER 2007

Address for correspondence: Angela Melville, School of Law, University of Manchester, Oxford Road,Manchester, M13 9PL, UK. Tel: þ44 (0) 191 225719. E-mail: [email protected]

ISSN 0969-5958 print/ISSN 1469-9257 online/07/030281-20 # 2007 Taylor & Francis

DOI: 10.1080/09695950802015864

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These two hemispheres are not only clearly distinct, they are also hierarchically

structured. Corporate lawyers earn considerably more, and are accorded a higher

level of prestige, than lawyers working in the personal services arena, such as family

lawyers. According to Heinz and Laumann (1982, p. 93), family law has the lowest

ranking of prestige when compared to other types of law. Admittedly, some family

lawyers who work in the commonly termed ‘magic circle’ firms that specialise in

high revenue cases may attract higher incomes and respect. Family law is still often

considered a necessary evil that is begrudgingly offered as part of a generalised prac-

tice (Brandt, 2000; Epstein, 1981, p. 318). Family law is sometimes perceived to lack

any intellectual challenge or content (Deech, 1990), or seen to be too ‘fuzzy’ to be

considered ‘real’ law (Dewar, 1992). Not surprisingly, there are growing concerns

about the lack of lawyers willing to take on family law work and, in particular, publicly

funded family law (Family Law Council, 1993; Law Society of England and Wales,

2003, 2004).

According to Mossman (1994, p. 359), ‘the relatively low status accorded to the

practice of family law limits the career options of family lawyers’. Mossman (1994)

argues that, as family law is predominately practised by women, the low status of

family law reduces the choices available to female lawyers. A number of empirical

studies have also concluded that structural and cultural factors limit the choices

that female lawyers have (Brockman, 2001; Harrington, 1994; Hunter, 2002;

Lentz & Laband, 1995; McGlynn, 1998; Menkel-Meadow, 1995; Sommerlad &

Sanderson, 1998; Thornton, 1996). For instance, Hagan and Kay (1995) drew on

the results of two studies, the first involving a survey administered in 1985, and

again in 1991, of 800 solicitors working in Toronto, and the second involving a

survey of 1,100 lawyers working across Ontario in order to examine the constraints

which shape the choices made by female lawyers. Their data demonstrated little

support for the commonly held perception that women’s careers are limited by a per-

sonal decision to focus on their families rather than their legal careers. Rather, it

appeared that the choices available to female lawyers would seem to be limited by

structural and cultural barriers, which perpetuate and maintain gender stratification

within the legal profession.

In a UK study, Sommerlad and Sanderson (1998) used data from postal ques-

tionnaires and follow-up interviews administered across two time periods (1990–1

and follow-up research in 1994), to examine the extent to which the structure of

gender relations shapes solicitors’ careers. They concluded that the expansion of

legal services, especially legal aid, has provided greater opportunities for women to

enter the legal profession and has diversified the types of legal work they may take

up. Nevertheless, women’s choices are still strongly constrained, and the opportu-

nities available to female lawyers are largely determined by assumptions of their

natural suitability for a role within the domestic/private sphere and that women

will naturally take on child-bearing and child-caring responsibilities, as well as

provide support to their male partner’s career.

Despite this research a belief still exists within the legal profession, especially

from those who are relatively successful, that career opportunities are based on free

choice and that career success is simply a matter of hard work and commitment.

282 ANGELA MELVILLE & KAREN LAING

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A number of researchers have shown that women who have broken the glass ceiling

often deny experiencing discrimination, and instead they ascribe their achievements

to hard work (Hunter, 2002; Rhode, 1991, p. 1766, 1997; Roche, 2003). For instance,

Sommerlad (2002, p. 215) found that lawyers largely believe that male and female

lawyers have an equal chance of becoming a partner in a law firm, and that in order

to do this women simply need to want to achieve. She cites the results of a survey of

law firms indicating that 95 per cent of respondents did not believe that a glass

ceiling exists. The absence of women in senior positions is generally not conceived

to be a result of gender stratification but, instead, is seen to be due simply to a lack

of numbers. The belief exists that when more women enter the field they will

‘trickle up’ into the top jobs (McGlynn, 2003, p. 151; Malleson, 2003; Rhode,

2003, p. 13; Sommerlad, 1994, p. 34). The belief that women prefer positions with

less responsibility, enabling them to spend more time with their families, is still

strong within the legal profession (Rhode, 2003; Roche, 2003, pp. 221–2).

2. Our research: interviews with publicly funded family lawyers

The data for this paper are drawn from empirical research conducted for an evalu-

ation of a new form of legal service for family law clients, known as the Family

Advice and Information Service (FAInS), which was piloted by the Legal Services

Commission (LSC). The aims of FAInS were to:

. facilitate the dissolution of broken relationships so as to minimise distress to

parents and children;

. promote ongoing family relationships and co-operative parenting;

. provide tailored information and access to services through a single gateway (a

specialised family lawyer) that may assist in resolving disputes, or may assist

those who are trying to save their relationship;

. identify what specialist support services need to be provided, how they can be

best funded and the role that central government plays in this (LSC, 2005).

FAInS was supplied by family pracitioners who were required to complete a pro-

gramme of professional development, and was piloted across fifteen areas of England

and Wales. Most of the FAInS providers were qualified lawyers, although a few were

qualified legal executives, and all had at least two years’ post-qualification experience.

FAInS providers were envisaged as acting as the ‘case manager’ for the client, and

were able to spend extra time exploring with the client the issues to be addressed.

As well as providing appropriate legal advice and representation, FAInS lawyers

were also encouraged to help clients to identify other services that could help them.

The evaluation of FAInS was conducted by a consortium of researchers, led by

Professor Janet Walker at the University of Newcastle upon Tyne, and funded by

the Legal Services Commission. The evaluation involved investigating the operation

of FAInS within six of the FAInS pilot areas. The data for this paper come from semi-

structured interviews, lasting from thirty minutes to one hour, with twenty-seven

FAInS providers. Respondents were randomly selected from a total of eighty

service providers involved in the FAInS pilot within our research areas.

CONSTRAINTS FACED BY PUBLICLY FUNDED FAMILY LAWYERS 283

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Our interviewees were asked open-ended, semi-structured questions, which

covered topics such as: what initially motivated them to take up family law; if they

had experienced any changes to their practice in recent years; if they anticipated any

changes to their practice in the near future; what aspects of family law they found to

be the most enjoyable; and what part of their work was most frustrating. The responses

to these questions provide the basis of our empirical data for this paper. For the purposes

of this paper, we have also classified our interviewees into ‘senior lawyers’ meaning

lawyers with at least ten years in practice and ‘junior lawyers’ to represent lawyers

with less than ten years in practice. We interviewed seven experienced female lawyers,

three experienced male lawyers, thirteen relatively junior female lawyers and two rela-

tively junior male lawyers. We also interviewed two female legal executives, one with

over ten years’ experience, and one with less than ten years’ experience.

Interviews were taped (with the informant’s permission), transcribed and coded

manually to identify general themes and patterns that emerged from the data. We did

not set out to analyse our data with the intention of examining the constraints placed

upon solicitors’ careers, but after analysing the transcripts, we realised that respon-

dents regularly returned to this theme, and hence our analysis took on a grounded

approach.

All interviewees had undertaken publicly funded work and, for the most part,

family law or child care matters made up the bulk of their workload. Our sample con-

sists of practitioners who work in high street firms with a LSC contract, and thus it

should be noted that our sample is not representative of all family lawyers.

Furthermore, involvement in FAInS was voluntary, and not all publicly funded

lawyers in each of the FAInS areas were involved in the pilot. Our interviewees do

not work in an environment that offers unlimited agency, whereas it is possible that

some family lawyers working in other types of practices, such as those who specialise

in high-cost privately funded cases, have very different experiences.

Eekelaar, Maclean and Beinart’s (2000) study of the work performed by family

lawyers in the UK found that family lawyers consist of two distinct sets of practitioners

according to their client base. The first set consists of lawyers who predominantly take

on low income, publicly funded clients. These lawyers juggle heavy client loads, work

for very limited financial rewards and tend actively to manage their client’s expectations.

The second set consists of lawyers who predominantly take on privately funded clients,

and who are more likely to allow clients to set their own agenda. In an Australian study,

Hunter, Geneovse, Melville and Chrzanowski (2000) compared the provision of legal

services provided to legally aided clients to those services provided to privately funded

clients. Again, the expectations of legally aided clients were more actively managed by

their solicitors, whereas privately funded clients were allowed more control over the

conduct of their own cases. Both of these studies focused on the relationship between

lawyers and their clients, rather than the degree to which lawyers are able to make

decisions about their own careers, however, they highlighted that the way in which

family lawyers undertake their work can vary significantly depending on their clients.

These studies suggest that it could be reasonable to suggest that lawyers working

in the ‘magic circle’ of family law firms, that is, firms that command high revenues and

tend to specialise in complex, expensive cases, are hardly likely to face the same


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constraints as solicitors working in firms where financial security is less certain. The

top end of the family law market in the UK appears to be dominated by particular

individuals, some of whom are women, and it could be argued that these individuals

have significantly more control over their work lives than other lawyers. This study,

however, does not study the entire spectrum of the family law market and, instead,

provides only the perspectives of solicitors who take on publicly funded work.

While this limits our ability to generalise from our findings, it still provides important

insights into how the careers of lawyers, depending on their position within the

hierarchies of the legal profession, are constrained by structural factors.

3. ‘I just drifted into it’: lawyers’ motivations for entering family law work

When we asked family lawyers what initially motivated them to practise family law,

their answers suggest that their decisions were largely based on factors outside their

control:

The solicitor in the firm who did most of the family law work went on mater-

nity leave and so I had to cover for her. (junior female family lawyer)

I was working for another firm, mainly doing civil and personal injury work. I

changed firms, and moved into family law. (senior female legal executive)

I was transferred from the criminal law department when the family law

department was becoming very busy. That was at the beginning of my train-

ing. And the criminal department was not very busy, and the option was

there and I took it. (junior female legal executive)

I started in a criminal firm, largely doing civil work and some family law.

Found a lot of criminal clients had family law problems. The firm is a fran-

chise firm. I never intended to do this work. (senior male lawyer)

These responses suggest that lawyers do not deliberately decide to enter family law.

Human capital theory assumes that actors make conscious decisions about their

career trajectories, whereas our interviewees appear to have had little control over

their own legal career.

The terms ‘drifted’ and ‘fallen’ occur in most accounts given by lawyers of why

they had gone into practice, bringing to mind an image of a leaf falling from a tree or

drifting in a breeze, as if at the whim of an external force of nature. These descriptions

convey a sense that their careers were being directed by unpredictable and uncontrol-

lable forces:

I was living abroad, and working in health. When I got back I needed to

retrain, and it just went on from there. I drifted into family law, and I love

it. With family law, I didn’t have one view or the other at university.

(senior female family lawyer)

I drifted into it, sort of fell into family law. There was a vacancy in the family

law department. (junior male family lawyer)


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I just fell into it . . . Like everyone at college, I had high hopes of doing com-

mercial law, but I didn’t get that sort of job. I enjoy the work, mind, even

though I have fallen into it. (junior male family lawyer)

Rhode (2003, p. 11) argues that many lawyers only see discrimination as overt

intentional prejudice, and tend to overlook other more subtle forms of discrimination.

Our research also shows that although lawyers do not tend to state explicitly that they

lacked choice, there was still a strong sense of being passive and of having decisions

made for them. The use of the term ‘drifted’ rather than the stronger term ‘lack of

choice’ may suggest that lawyers are only aware of structural restrictions if they are

overt and obvious.

While lawyers did not necessarily choose to go into family law, our interviewees

were usually careful to explain that this did not mean that they did not enjoy their

work. In fact, the majority of our interviewees stated that they liked their work and

that they often found it very satisfying as the following comments attest:

I really enjoy children’s work, I like the wide and varied nature of it. I par-

ticularly enjoy representing private clients. I think you either love it or

hate it, and I love it. I actually really enjoy what I do. (senior female legal

executive)

I really enjoy it, and I like working with people. I like the ‘real’ issues. That

doesn’t mean that other issues aren’t real either, but in family law the issues

are more interesting. I like the people. (junior male family lawyer)

I enjoy working with the clients, acting for individuals, trying to sort out their

problems basically. (senior male family lawyer)

These family lawyers appear particularly to enjoy the non-legal aspects of their jobs,

such as assisting people through a very difficult stage in their lives and aiding them to

move on. Several lawyers stated that they felt they were able to ‘empower’ their

clients, especially those that had faced domestic violence or were unaware of their

rights or their financial situation within the marriage. In addition, several lawyers

mentioned that they enjoyed being able to show clients that there was ‘light at the

end of the tunnel’. Our interviewees generally preferred family law over other

areas of legal speciality such as personal injury law, which they felt were too clinical

and technical.

At first instance it would seem that lawyers are happy with their move into family

law, despite the fact that this move was not made by choice. Hagan and Kay (1995,

p. 176), however, warn that lawyers’ level of job satisfaction can be very difficult to

measure. They suggest that rather than asking lawyers outright about job satisfaction,

it is often more useful to examine the comments lawyers make about wanting to

change jobs or about their work conditions. When we apply a similar approach to

our own interview material, we start to discover that not all family lawyers find

their work to be entirely satisfying. For instance, several lawyers suggested that, had

they been given the option, they may have not have practised family law:


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On the whole, I enjoy it. There are certain aspects that I enjoy more than

others. But yes, fifteen years ago I might have well chose a different career

path if I knew about how it would be today. (senior female lawyer)

Several lawyers commented that they now had adult children who were considering

going into legal practice (or were already practising), and that they had tried to ensure

that their offspring had not followed them into family law. These lawyers explained that

they did not want to see their children facing the same levels of stress that they

themselves had experienced, suggesting that family lawyers may not enjoy their work

so much that they would recommend it to their offspring.

We asked lawyers to identify any aspects of their work that they found particularly

frustrating. While lawyers stated that they enjoyed their work, the majority stated that

they also found their work to be very stressful. Some of these lawyers were obviously

struggling to deal with a demanding workload:

[You are] always chasing your tail. Never being able to sit down and concen-

trate on something, because you never know what’s going to happen. We are,

at times we are quite a fire brigade service. And that’s the problem . . . We hit

the day thinking ‘what can I cover in the next ten minutes, before the next

thing happens?’ And then you end up at half past five doing a couple of

hours to clear it up or starting at seven and doing a while before, before

the day starts, so that the work’s done at the end of the day. But when I

say that, it’s all work. (senior male family lawyer)

The workload is heavy enough as it is. It is to a point where, I know that for my

own sanity I will take work home at times. If I can get it done at home, I come

back and I feel like that is out of the way. We are constantly interrupted by calls,

messages, we have clients every hour. We have to be ruthless and cross out days

at a time. Well, one day. But we know that someone can walk in. One of your

existing clients could be beaten up the night before, and you can’t just say, ‘well

I’m sorry but I’ve crossed today out so that I can catch up with the three piles of

urgent work’. You have to do it. So it’s hard. (junior female lawyer)

All of the interviewees explained that family lawyers must deal with the ‘emotion-

al problems’ clients bring, rather than simply focus on legal issues. They explained

that their clients are often very upset, confused and angry, and that family lawyers

are ‘part-counsellor, part-solicitor’. While our interviewees appeared to enjoy the per-

sonal nature of family law, they also explained that family law work was often emotion-

ally draining:

I think, really, in regard to family law, the frustration is that, obviously, we

are not social workers; we can’t deal with the emotional side of clients.

(senior male family lawyer)

Almost all interviewees stated that many of their clients are very ‘needy’ and

‘dependent’, and that clients frequently telephone and expect that the lawyer is avail-

able ‘at the drop of a hat’. This perceived constant level of demand appeared to erode

the lawyer’s ability to feel on top of a file:


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Although it can be very stressful. And at times you think what on earth are

you doing, doing this job. Because you can go home, and wake up at three

o’clock in the morning, worrying about a particular file, what you have

and have not done. And at times it gets very stressful, being there for

people when they ring, and very, very demanding, wanting things done

instantly. (junior female family lawyer)

For some lawyers, their frustration appeared to be exacerbated by the fact that

they did not appear to have very much control over their own work environment or

the cases that they took. This lack of control appeared to detract from their overall

job satisfaction:

I don’t care terribly much for injunctions. The bog standard green form,

what we call green form divorces. Because, simply, they are in the office

and because public funding being as it is, we can’t afford to take on some-

body else to do that sort of work at this stage. We are simply having to do

whatever work that comes in through the door. (senior female family lawyer)

A number of other studies have found that lawyers, and in particular female

lawyers, can express overall satisfaction with their jobs, and yet on further investi-

gation, there are obvious cracks. For instance, Chambers (1989) found that female

lawyers reported that they were generally satisfied with their careers, and yet they

also reported feeling exhausted and unable to balance work and family. Hagan and

Kay (1995, pp. 161–2) found that female lawyers often expressed satisfaction with

their job, and yet when questioned further, expressed frustration at having to fit

into an adversarial and competitive male lawyering culture, and at having to juggle

the demands of both family and career. Berger (2000) found that although female cor-

porate lawyers had achieved career success, rather than being happy, they suffered

from depression, exhibited self-punishing behaviour and were strong candidates for

burnout and disillusionment.

Studies have also found that women often express overall job satisfaction

despite being paid less than men, occupying lower status positions and possessing

lower levels of authority and autonomy relative to their male colleagues. This

phenomenon has come to be known as the ‘paradox of the contented working

woman’ (Hull, 1999; Parks, Russel, Wood, Roberton & Sheworkis, 1995; Phelan,

1994). Various explanations have been put forward to explain this paradox, such

as: women compare themselves to other female workers or women who are not

in the workforce rather than to male workers (Crosby, 1982; Hodson, 1989);

women find satisfaction in multiple roles within work and the domestic sphere

(Hull, 1999); and women have lower (Clark, 1997) or different expectations than

men (Bender, Donohue & Heywood, 2005).

Hagan and Kay (1995, p. 163) argue that female lawyers often accommodate

their feelings of dissatisfaction and frustration by taking on an attitude of resignation.

Our female interviewees also appear to have adapted by taking on an attitude of res-

ignation. While they almost all expressed enjoyment with their family law work and

stressed their personal commitment to doing publicly funded work, their comments


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appear to mask deeper dissatisfaction. The main source of this dissatisfaction seems to

be a sense of a lack of control and autonomy.

There is ample evidence showing that lawyers’ careers are heavily influenced by

institutional factors, including discrimination within the legal profession. Female

lawyers who reported working the same number of hours as their male counter-

parts, and who had entered firms with the same level of legal education, were

channelled into service-oriented work, such as family law, which had less billable

hours (Hagan & Kay, 1995, p. 131; McGlynn, 2003, p. 152). Male lawyers have

greater access to senior positions within the firm, and greater involvement in

decision making (Hagan & Kay, 1995). Thus, female lawyers’ lower level of pay

and status has very little to do with gender differences in choice, levels of commit-

ment or investment in career and, instead, may be best explained by gender

stratification within the legal profession. Other researchers have also noted how

female lawyers are ‘channelled’ (Epstein, 1981, p. 318) and ‘steered’ (Duff &

Webley, 2003, p. 8) into lower paid and lower status positions.

Several researchers have also noted the way in which the careers of female lawyers

have been constrained by the need to find a balance between work and family respon-

sibilities (Boon, Duff & Shiner, 2001, p. 579; de Groot-van Leuwen, 2003, p. 346;

Seron & Ferris, 1995; Shanelaris & Luneau, 1998, p. 67). While it may be the case

that many female lawyers do not have the opportunity to direct their careers, when

they are given some leeway, women often decide to move into a field of law that is

more family friendly in an effort to gain some control over their lives. Research

suggests that female lawyers sometimes move into family law work as it has more flex-

ible hours, allows women to spend more time working from home and, while it is not

necessarily a lucrative business, the work is steady (Harrington, 1994, p. 39; Mather,

2003, p. 36).

4. ‘Women’s work’ and family law

Research into the legal specialisations stresses that, relative to many other areas of law

such as corporate law, family law is lowly paid and attracts less prestige (Eekelaar et al.,

2000; Heinz & Laumann, 1982; Heinz et al., 1998). This view, however, hardly does

justice to the demands that are placed on family lawyers. Family lawyers attempt to

promote negotiated, non-adversarial settlements (Hunter, 2003) that must walk a

fine line between achieving a flexible arrangement that both parties can live with,

representing their clients’ interests and ensuring children’s welfare is protected

(Eekelaar et al., 2000). Family lawyers need to find a balance between offering

emotional support and providing legal advice and information (Eekelaar et al.,

2000). They need to deliver an outcome that their client will be satisfied with, and

at the same time try to manage their client’s expectations (Davis, Cretney &

Collins, 1994, p. 69; Hunter et al., 2000, p. 315; Ingleby, 1994; Mather, 2003,

p. 38; Mather, Mainman & McEwen, 1995; Sarat & Felinster, 1995). They must

also establish a relationship of trust with the client, which can often be made difficult

by the imprecise nature of family law (Ingleby, 1994, p. 353), while at the same time,

attempting to maintain social distance. Few family law cases proceed to court, and


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even fewer will proceed to a final hearing. As a result, family lawyers need to be skilled

at other forms of reaching settlement, for example, mediation (King, 1999).

The complexity and difficulty of doing family law work was stressed by all of our

interviewees. The work of a family lawyer was conceived as offering emotional support

rather than strictly legal advice:

My role is to help clients solve their legal problems. But, also, you are a

shoulder to cry on. You are as much a social worker as a lawyer. Clients

turn up distressed and upset. You can’t just tell them that they have to put

a lid on their emotions, just put it into a box, or they will leave. You need

to be able to maintain a distance, not to let it become personal, but at the

same time you need to be able to listen. (junior male lawyer)

Some [clients] need to talk, you must give them the opportunity to do so,

even if it’s garbled. Most are articulate, but they are emotional. Most want

to talk about non-legal issues, like the breakdown of the marriage, why

they want to get a divorce. You need to give them leeway, not shush them

up, or else you won’t get their trust. (senior female family lawyer)

Similarly, Eekelaar et al.’s (2000) study of the work performed by family lawyers also

suggests that one of the key tasks of family lawyers is to provide emotional support,

rather than simply legal advice. Family lawyers were found to spend most of their

time communicating and interacting with their clients (and other parties involved

in the case), rather than just providing legal representation.

The lawyers that we spoke to also stressed that their role often involved persuad-

ing the client to consider the point of view of the other party and to come up with a

solution that would endure:

. . . not simply looking at their clients and what is best for their client, and

going hell for leather arguing their point of view, but sometimes making

the client understand that sometimes there is a second point of view, and

that is something that the court will take into account. (senior male family

lawyer)

According to Eekelaar et al. (2000, p. 88), family lawyers engage in a complex process

of negotiation whereby they try to meet their client’s needs, but not aggravate conflict

by zealously identifying with the client or forcing their own solutions upon the client.

Family lawyers often attempt to protect the immediate needs of the client and their

children while considering their client’s long-term future, which invariably means

convincing the client to accommodate the wishes of the other party (Eekelaar et al.,

2000, p. 88; Hunter et al., 2000).

This lawyer explained that family law is different from other areas of legal prac-

tice, in that the solicitor must consider interests beyond those of their client:

[I] try to get the client to understand and appreciate that family law is very

different and that sometimes one has to look at, not only what the client

wants, but sometimes it’s an aspect of what the client can live with.

Because it is an issue that he has to live with for the rest of his life or her


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life, and it will have consequences with his or her relationship with the other

party, and the relationship with the children. If one’s client wipes the floor

with the other party then that’s going to cause bitterness and resentment.

(senior male family lawyer)

Research into what family lawyers do stresses that family law practice differs from

other areas of legal practice (Brandt, 2000; Eekelaar et al., 2000; Hunter et al.,

2000, p. 341), although the specialist skills required by family lawyers are not

always given due recognition. Epstein (1981, p. 318) argues that this lack of recog-

nition is a result of the construction of family law work as ‘women’s work’. Family

law, which is a female dominated service at least in terms of numbers (Eekelaar

et al., 2000, p. 41), is often seen within the legal profession as a natural extension

of women’s supposedly innate nurturing traits (Mather, 2003; Sommerlad, 2003,

p. 208; Sommerlad & Sanderson, 1998).

According to Sommerlad (1994, 2002), the normative construction of what it

means to be a professional lawyer is highly masculinised. Sommerlad (1994, p. 37)

argues that lawyers are rewarded for displaying stereotypical masculine characteristics

such as ‘assertiveness, rationality, neutrality, objectivity, logic and strength’, whereas

lawyers who display stereotypical feminine characteristics such as caring, intuition

and concern are seen to be deficient. Masculine norms become the standard

against which lawyers are then judged. Thus, corporate lawyers are more likely to

display the desirable qualities of a top legal professional, whereas family lawyers

need to have skills that are considered to be less important, or worse, deviant.

Several studies have observed that some female lawyers feel that they must work

harder in order to achieve this masculine standard, and that they need to do more than

male lawyers in order to establish their merit and demonstrate their commitment

(Mather, 2003, p. 43; Roche, 2003, p. 220; Sommerlad, 2002, p. 216; Sommerlad &

Sanderson, 1998). For instance, in a study of female lawyers exiting the legal pro-

fession, Duff and Webley (2003, p. 8) found that many of their research participants:

. . . felt that female working practices were little understood and even less

valued. They highlighted good communication skills, excellent client care,

diligence and a sense of responsibility as key skills that they brought to the

profession. They felt, however, that they were steered into areas of work

where these skills could be utilised but that these areas were perceived to

be women’s work and consequently lacked status, promotion prospects or

strong financial reward.

The feeling of being undervalued was also expressed by a number of the family

lawyers that we interviewed:

We have a lot of work. We have targets to meet . . . The firm sets us a target of

what we have to bring in every year, and we get monitored on how we pro-

gress, so that we are aware of how much money we are bringing in . . . If you

are working in personal injury, they bring in three times what we would with

a legal help. So we often see people in different departments that aren’t

working as hard as us, and we work quite hard. We can work three times


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as hard as them . . . the workload is quite difficult in addition to having very

demanding and emotional clients. (junior female family lawyer)

The privileging of corporate over family law work also reinforces a hierarchy

between the private and public spheres. Corporate lawyers work in public and

global arenas, whereas family lawyers deal with private problems, such as divorce, sep-

aration, the division of property usually in the form of the family home and residence

of and contact with children. For parents, these issues may be private, but they are of

critical importance, and many family law litigants are often very deeply and emotion-

ally engrossed in their cases (Eekelaar et al., 2000; Kaganas & Day Sclater, 2004;

Mather, 2003, p. 37; Sarat & Felinster, 1995). While family law may operate

within the private sphere, this does not necessarily mean that the issues are not

complex, and research has shown that family law cases often involve a ‘cluster’ of

both legal and non-legal issues (Genn, 1999, pp. 31–6) that can sometimes be very

difficult to untangle (Smart et al., 2003, p. 50).

5. Recent changes in legal services

Most of our interviewees ended up doing family law because they felt they had little

choice. Those lawyers who moved directly into family law were largely constrained by

the options available to them at the time and, as our results have highlighted, several

lawyers were required by their firms to move into family law. These results also suggest

that high street legal firms are making internal adjustments in order to remain com-

mercially viable. Indeed, many of our interviewees described changes that had

occurred within their firms in the last couple of years, and we also noticed that

firms were making adjustments to the market during the period of our research.

Many also anticipated further changes that would be required in order for firms to

remain cost-effective. This reflects the increasing pressure that is being applied to rela-

tively small firms who specialise in personal services work and cater for publicly

funded clients.

Other researchers have also noted the increasing competitive market in which

high street firms are attempting to operate (Parker, 1999; Sommerlad, 2003,

pp. 214–15). For instance, Abel (2004) argues that while the legal market was

traditionally controlled by the legal profession, since the mid-1980s lawyers have

lost much of their autonomy and exclusivity. This change is partly a result of

market influences that have produced a more commercial approach towards legal

services.

The increasing commercialisation of legal practice is also a result of increasing

state influence over legal services, which is perhaps best exemplified in changes to

publicly funded legal services in recent years. In 2000, the Legal Aid Board was

replaced by the Legal Services Commission (LSC), which brought in the requirement

that all civil matters must be handled by suppliers who had a contract with the LSC.

One of the most immediate impacts of franchising was the withdrawal of a consider-

able number of firms from publicly funded work. It has also been argued that LSC

franchising has resulted in the legal profession taking a more commercialised attitude


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towards service provision, increased state surveillance and control over the legal pro-

fession, and decreased lawyer autonomy, power and morale (Abel, 2004; Moorhead,

2001; Sommerlad, 2001).

Other changes had gained impetus in the 1980s which particularly impacted on

high street firms, including the lifting of restrictions that have allowed lawyers to

maintain exclusive control over certain types of work, such as conveyancing

(Domberger & Sherr, 1989). High street lawyers are facing increasing encroachment

by non-lawyers into traditional services such as work relating to routine wills, uncon-

tested divorces, routine auto accident claims, domestic violence injunction hearings

and benefit claim hearings (Kritzer, 1999). Until recently, English lawyers could

not work in private practice under the supervision of non-lawyers, and thus all part-

ners in a private practice providing legal services had to be lawyers. In 1990, the stat-

utory barrier that restricted lawyers acting as agents for unqualified persons was lifted,

effectively opening the way for multi-disciplinary partnerships (MDPs) (Abel, 2004).

Kritzer (1999) argues that the advent of MDPs reinforces a more business-oriented

approach to legal services, characterised by a greater focus on cost-effectiveness,

the routinisation of service provision and the increasing use of non-legal staff (e.g.

paralegals).

One of the impacts of these changes is that publicly funded family law is facing a

‘looming crisis’ in terms of attracting new, and retaining experienced, practitioners

which has largely been attributed to low remuneration levels (Law Society, 2003,

2004, p. 2; Legal Aid Practitioners Group, 2002; see also Emmerson, 2003;

Moorhead, 2004, p. 161). In addition, there is concern about the uneven geographical

spread of firms that take on publicly funded cases, so that the United Kingdom is now

facing areas of ‘advice deserts’ (Advice Services Alliance, 2004, p. 3; CAB, 2004;

Moorhead, 2004, p. 162). The concern about the potential lack of supply of

lawyers prepared to represent publicly funded cases was summarised by the

Constitutional Affairs Select Committee (2004, p. 16):

The evidence on the difficulties of recruiting lawyers and barristers to legal

aid work and retaining them underlines one of the most serious threats to the

provision of publicly funded legal advice. The significant trend of young

lawyers away from legal aid work puts into question the future of the civil

legal aid system.

It has also been argued that new graduates are not being enticed into legal aid

work, partly because legal aid firms cannot compete against the salaries offered by

firms which focus solely on private work. Even if students would choose to do legal

aid work for the personal satisfaction, they are under financial pressure from

student loans to go into firms that offer more attractive salaries. In addition, firms

are reluctant to take on trainees who wish to go into legal aid work, as newly qualified

legal aid lawyers are such a scarce commodity that there are fears that they will be

poached at the end of their training (Legal Aid Practitioners Group, 2002, p. 3).

Several of our lawyers gave accounts of having their junior colleagues poached, as

well as experiencing other problems recruiting new lawyers:


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We are currently looking for a new practitioner to join the firm, and it isn’t

easy. We can’t find anyone. (senior female family lawyer)

But family law is the poor relative. There is no point at all to becoming a

family lawyer, at least not in a high street firm. If you want to do family

law you have to go to a commercial firm. Legally aided work is no longer

a proper career. We are dropping the work down in the firm. We have

dropped down from four partners to one partner, and now we hardly do

any publicly funded work. Only junior solicitors do it anymore, and I cer-

tainly encourage them not to. I tell them that if they want to do publicly

funded work they will have no future prospects. And this is what is happen-

ing, we are in the middle of a fighting withdrawal. (senior male family

lawyer)

Indeed, the Legal Services Commission’s annual reports provide evidence for the

decrease in family lawyers doing publicly funded work. Since the introduction of fran-

chising in 2000, there has been a steady decline in the number of lawyers with con-

tracts to do legal aid work in civil law. During the period March 2000 to March

2002, the number of law firms and not-for-profit organisations with contracts for

family law work dropped from 4,243 to 3,760, a decrease of 11 per cent (LSC,

2000/1, p. 6, 2001/2, p. 9). During the period March 2003 to March 2004, contracts

held by lawyers for Controlled Work in family law dropped from 3,595 to 3,264, a

decrease of 9 per cent (LSC, 2002/3, p. 8, 2003/4, p. 21). The LSC has made

efforts to address recruitment problems, including launching the Developing Legal

Aid Solicitors Scheme in 2002, which provides training support grants in order to

increase the number of newly qualified lawyers taking on publicly funded work

(LSC, 2002).

6. Discussion: where to from here?

Despite the gendered disparities within the legal profession in terms of wages, status,

control over one’s own work environment, power, level of job satisfaction and working

conditions (Brockman, 2001; Harrington, 1994; Hunter, 2002; Lentz & Laband,

1995; McGlynn, 1998; Menkel-Meadow, 1995; Sommerland & Sanderson, 1998;

Thornton, 1996), there is still little recognition within the legal profession that

these differences are caused by gender stratification rather than by individual

choices (Hagan & Kay, 1995). There is a danger that differences which are outcomes

of structural and institutional factors will simply be ignored, and that the belief that

changes will ‘trickle down’ erodes efforts to effect real social change. It would

appear that a more useful way to change gender stratification within the legal pro-

fession is to focus on implementing structural and cultural change.

Our research suggests that family law needs to be seen as a specialist field in its

own right, rather then being dismissed as a generalist field that does not require

any particularly demanding or complex skills, or as a natural extension of ‘women’s

work.’ This move towards specialisations is already well on its way, with increasing

specialisation occurring within the legal profession more generally, accompanied by


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a steady decline in generalised practice (Kritzer, 1999). In addition, the Law Society

of England and Wales now has accredited panels for Family Lawyers, Family Lawyers

Advanced and Family Mediation. It also produces its own Family Law Newsletter. In

the United Kingdom, family lawyers can join Resolution: First for Families.2 These

developments may provide useful points of connection for lawyers already in family

law, and will possibly encourage clients to see family law as a specialist field.

Increased specialisation does not automatically mean family law will become

valorised, and the views of family law held across the rest of the profession also

need to change. While Resolution is dedicated to changing the ways in which

family law clients think about family law, in that it promotes the non-adversarial res-

olution of family law problems, another focus for Resolution may be to assist in chan-

ging the ways in which other lawyers think about family law. In addition, high profile

family law cases (such as the divorces of Prince Charles and Lady Diana and Paul

McCartney and Heather Mills) and the increasing prominence of ‘magic circle’

family law firms may improve the value of family law within the legal profession,

although arguably it may do little to enhance the degree of power possessed by

publicly funded family lawyers.

The commercialisation of high street practices, especially those that take on pub-

licly funded work, appears to be a major culprit in denying lawyers control over their

own careers. It would seem that high street practices are being transformed into legal

franchises that set tight targets for their staff and move their staff between depart-

ments in order to satisfy market demands. If publicly funded family lawyers are not

to suffer from burnout, then adequate public funding needs to be provided to these

firms, and policy makers should pay attention to the impact of reforms that are

demanding that high street lawyers attempt to achieve more with less resources.

Sommerlad (1994) argues that the masculinist legal culture needs to be chal-

lenged and, central to this, the long working hours required by the ‘heroic’ legal prac-

titioner need to be addressed. Arguably, lawyers are first exposed to this culture in law

school. She describes law school culture as being adversarial, competitive and highly

stressful, with law students being rewarded for spending long hours studying for end

of year exams, which make up the bulk of assessment. Sommerlad (1994) asks why

such long working hours are seen to be crucial in order to be a successful lawyer,

and perhaps this is a question that should be taken seriously by both the Law

Society and law schools. Rhode (2003, p. 16) has argued for structural reforms

within the law profession, including better provisions for more flexible work practices

including provision for part-time work, or working from home, and adequate recog-

nition of family and personal needs: we would like to add our support for these

reforms.

Finally, our research raises some important issues concerning the extent to which

current legal education is sufficient to produce lawyers who are able and willing to

take on family law work. As we have demonstrated, almost all of our interviewees

did not deliberately choose to enter family law. In the United Kingdom, family law

is offered as an optional subject within law schools rather than as a core subject

and, arguably, family law is afforded a lowly status in many law schools (Burton,

Clement, Standley & Williams, 1999, p. 14). This raises the possibility that students


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who have no intention of practising family law will not be motivated to study the

topic. Upon graduation, however, these same students may find themselves practising

family law, despite the fact that they have no background or training in the field. This

finding suggests that continuing education for family lawyers is absolutely critical.

Our interviewees also stressed the importance of gaining experience outside uni-

versity in developing as a family lawyer. Most of the family lawyers to whom we spoke

had considerable ‘life experience’ prior to beginning legal practice, and these lawyers

felt that this experience had made them a better family lawyer. For lawyers, experience

meant having a mature outlook, perhaps having family and children themselves and

being able to have a level of sympathy with clients, possibly due to having had

direct experience of family breakdown:

I have been divorced myself, and so [from] my experience of life, I can bring

something to family law myself . . . My age makes clients comfortable, clients

like to talk to an older solicitor. Some clients are just ‘bits of fids’, with all the

emotion, they need someone they can trust. (senior female family lawyer)

My personal feeling about this, my mum and dad separated a long time ago

and I wanted to be able to help people . . . I like to think that I am quite sym-

pathetic. A lot of the job is counselling, helping people through it, as well as

the actual divorce proceedings and finances. (junior female legal executive)

Other researchers have also found that post-qualification experience is important

for lawyers when seeking a position in family law (Boon et al., 2001, p. 569). Hunter

et al. (2000, p. 327) found that family lawyers tended to stress the importance of

experience in their development as a family law practitioner, including the experience

that comes from: age; having been through family breakdown; knowledge of other

areas of law; and working in other occupations. Hunter et al. (2000, p. 328) argued

that life experience is important in producing family lawyers with a better understand-

ing of their clients’ perspectives and may improve lawyers’ judgement. Experience

that is more easily quantified, such as number of years in practice, may not necessarily

translate into good family law practice, however, as Hunter et al. (2000, p. 328) state:

‘It seems that the measurable aspects of experience are essentially meaningless, while

its meaningful aspects are essentially unmeasurable!’

The requirement for additional life experience presents law schools with an

additional problem. Law students who study law at university may not necessarily

end up in family law practice, as they may not have the life experience desired by a

firm. One of the ways in which law schools are attempting to move away from techno-

cratic legal education towards more ‘real-world’ education is the use of clinical law

schools, and this approach may be valuable in providing additional experience to

family law graduates (van Steegh, 2005). Other disciplines, such as social work,

often require students to have additional hands-on experience and set a minimum

age for practitioners. This approach has been favoured in other jurisdictions. For

example, in Australia most law students do a double degree or enter law school as

graduates. While we do not necessarily advocate that this system would be appropriate


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in England, nevertheless, it does highlight the need to consider how law undergradu-

ates gain knowledge about law and society, rather than just the law.

7. Conclusion

Whereas some lawyers ascribe to the belief that success is simply based on commit-

ment and hard work, we have shown the importance of increasing competition, the

decline of publicly funded legal services work and discriminating beliefs and practices

within the legal profession in shaping lawyers’ careers. It would also appear that the

relatively low status position of family lawyers is not due to a lack of skills, demand

or commitment, but is an outcome of a dominant legal culture that esteems long

working hours, adversarialism and competition. The work of family lawyers is

highly demanding and significantly different from other areas of legal practice, and

involves dealing with non-legal issues, providing emotional support to their clients

and, instead of just representing their client’s interests, family lawyers also keep an

eye on the interests of other parties involved in a case. These skills, however, are

too readily dismissed within the legal profession as an extension of ‘women’s work’.

Thus, it would appear that the careers of some lawyers, especially publicly

funded family lawyers, are strongly constrained by structural and cultural barriers.

Thus, simply waiting for change to ‘trickle down’ is not an effective method for alle-

viating inequalities within the legal profession. Instead, we suggest strategies that may

assist in allowing family lawyers to feel as if they have some control over their work

environments, including developing an understanding within the legal profession

that covert discrimination can be just as harmful as less obvious forms of discrimi-

nation. Finally, we have shown that in order for lawyers to consider making the delib-

erate and conscious decision to enter publicly funded family law, the very nature of

what constitutes worthwhile legal practice needs to be changed.

Acknowledgements

This research was funded by the Legal Services Commission, although the views are

those of the authors.

Notes

[1] Heinz and Laumann have since followed up this study, and found that the divide has grown even

further. See Heinz, Nelson, Laumann and Michelson (1998).

[2] Formerly the Solicitor’s Family Law Association.

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‘i just drifted into it’: constraints faced by publicly funded family lawyers

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