Three years after a New York State Bar Association study raised the alarm about under-representation of female attorneys in courtrooms, progress has been incremental, according to a new study released Thursday.

The study, which is based on questionnaires from state and federal judges across New York who documented the gender of lawyers who spoke and appeared before them during a four-month period, found that 25.3% of attorneys in lead counsel roles in 2020 were women, compared with 24.7% in 2017.

NYSBA President Henry "Hank" Greenberg called the lack of change "unacceptable and disturbing," emphasizing that the 2017 report included concrete steps that law firms, clients and judges could take to improve matters.

Many of the 2017 recommendations were aimed at ensuring women have more chances to speak during depositions and trials, and the earlier study noted that junior female attorneys working in the public sector tended to have more opportunities to practice hands-on skills early in their careers.

The percentage of female lead attorneys in the public sector actually declined from 2017 to 2020, according to the new study, but it remained significantly higher than the number of female lead attorneys in the private sector.

In 2020, 35.1% of public-sector lead attorneys were women compared with 20.8% in the private sector, while the 2017 study found that 38.2% of public-sector lead attorneys were women compared with 19.4% in the private sector.

Members of the NYSBA's Commercial & Federal Litigation Section Task Force on Women's Initiatives wrote both reports. Retired U.S. District Judge Shira Scheindlin, of counsel to Stroock & Stroock & Lavan and the principal author of the updated report, said now is the time to implement the group's recommendations.

Carrie H. Cohen, a partner at Morrison & Foerster and a co-author of the report, said she hopes the 2020 report is viewed as a call to action.

"It is critical during this unprecedented public health pandemic that we double-down and increase focus on diversity efforts to ensure that the limited progress that has been made for women and minority attorneys is not lost, especially as women and diverse attorneys too often are disproportionately impacted by crises," she said.

The report found that some suggestions from the 2017 report have been successfully implemented. Many more judges have changed their individual rules of practice to encourage participation by younger and more diverse attorneys, the report noted, and in-house legal departments are focusing more on diversity when they hire outside counsel.

More law firms have built up their women's initiatives since 2017, the report found, but the task force recommended a number of improvements at firms, including more sponsorship of women by male and female senior attorneys and more credit for traditionally nonbillable work.

Sponsorship and other diversity and inclusion efforts should be included in compensation calculations to incentivize firms' long-term prospects, the task force wrote.

Firms also need to examine how and to whom senior male attorneys pass their books of business as they move toward retirement, the task force wrote, noting that firms often allow senior attorneys to maintain "ownership" of clients even after they've stopped doing day-to-day work for that client.

"Given that the Baby Boomer generation is nearing retirement, the lack of succession planning is critical to the future of the firm," they wrote. "Nonetheless, such planning, if it exists, appears to be mostly subjective and lacking in transparency."

Because so many top rainmakers are men, the task force wrote, they must "conscientiously include women in their business opportunities."

Other findings from the 2020 study included:

• Overall appearances by women in the New York courts improved slightly more than the lead counsel count since 2017. Women made up 26.7% of attorneys appearing in civil and criminal cases, which is a 1.5 percentage point increase from 2017.

• The share of women appearing as additional counsel increased 9 percentage points compared with 2017, to 36.4%.

• In cases with multiple parties per side, women's participation increased compared with 2017 but remained much lower than cases with just one party per side, indicating that gender diversity in complex cases is an ongoing issue.

• Compared with 2017, women's participation in trial courts increased more than their participation in appellate courts. In 2020, women made up 26.3% of appearances in trial courts and 24.7% of appearances in appellate courts.

• Upstate courts had more participation by women than downstate courts, with women appearing in lead roles 27.9% of the time compared with 24.2% of the time downstate.

• With the caveat that federal criminal cases were included in the study while state criminal cases, where many public-sector attorneys practice, were not surveyed, federal courts were found to have more participation by women than the state trial courts' commercial divisions. Lead attorneys were female 35.1% of the time in the Commercial Division of the Eighth Judicial District in Erie County and 31.8% of the time in the Southern District of New York. The lowest rate of appearances by women was in the Commercial Division of New York County, with 18.7%.

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