Apple Newton-Smith responding to the proposals at the LSUC’s consultations. Natalie Fraser/The Lawyers Weekly Click here to see full sized version.

Maternity leaves don’t come easy for women practising in small firms. Financial challenges loom large; hanging on to clients poses a major difficulty. The result: they have been leaving private practice in droves.

Part of the mandate of the Retention of Women in Private Practice Working Group, created by the Law Society of Upper Canada, involves tackling this problem.

“In 2005, Convocation voted to see if there was something that could be done for women in the profession because the statistics...showed that women were leaving the profession in significant numbers, significantly higher than men,” said Bonnie Warkentin, co-chair of the working group.

The group quickly discovered that the challenges facing women in small firms were unique. Part of the group began developing recommendations to combat those challenges, which will be presented to Convocation in May.

“There were two main issues we heard recurring,” Warkentin said. “The first was the hardship to maintain an income during a leave of absence, and the second was maintaining the practice during the leave. If you take a leave of absence, you lose the income flow, and you also lose your clients — you don’t have a practice to return to.”

In larger firms, women lawyers don’t need to ramp down to take a maternity leave because many other lawyers can share the workload, said Warkentin, while noting that women in large firms face different obstacles. As well, many women in sole or small firms are self-employed and therefore not eligible for EI or other benefits.

The burdens of motherhood

For Apple Newton-Smith, a sole practitioner practising criminal law in Toronto, the financial repercussions of her maternity leave took a heavy toll, particularly when she returned to work after having her second child.

“Coming back the second time around, I was still reeling financially from the first (maternity leave),” Newton-Smith said. “You’re just borrowing and borrowing. And then you reach the end of the borrowing line...When you do a lot of legal aid work, which I do and which most criminal lawyers do, you’re always on the line because legal aid takes months and months to pay their accounts. Mat leaves aside, it’s always tight, and when you start taking time off, it gets worse. The financial concerns are huge.”

Suzan Fraser, a Toronto lawyer who specializes in civil litigation and administrative law, and who has three children all under the age of three, echoes the difficulties raised by Newton-Smith. Lawyers in small firms pay for their own leaves, Fraser said.

“You need a good lot of credit if you want to take a leave,” Fraser said. “I incurred a lot of debt with two very close pregnancies. It was very difficult to recover. If I’d wanted to close my doors I couldn’t have because I had to pay off the debt.”

Parental leave benefits

The law society’s working group heard this problem loud and clear, and responded with a proposal for parental leave benefits.

“The (proposed) parental benefits are three thousand dollars a month for three months,” Warkentin said. “We hired an actuary to provide us with various scenarios, and we’ve come up with a range of between five and fifteen dollars a member (to pay for the program)...It is limited to people in firms of five lawyers or smaller who don’t have other benefits. It is a three-year project and we’ll evaluate it at the end of that, and if we need to expand it we will.”

For Newton-Smith, the parental leave benefits would have made a tremendous difference.
“I almost cried when I read (about the funding for leaves),” Newton-Smith said. “It’s huge for us. It would take some of the pressure off. You would go from a situation of having zero income and expenses to at least covering your expenses and maybe having a little bit extra.”

She would like to see this proposal go even further.

Fraser agreed that parental leave benefits would have been extremely helpful to her.

“The (funding proposal) would have provided me with tremendous relief,” Fraser said. It would have come fairly close to matching her overhead, which would have meant either she could have taken another month of leave or incurred much less debt. “It’s a tremendous start. I think the profession will be generally supportive because the results are so real and the cost is so little. The criticism of it will be that it doesn’t go far enough.”

The response Fraser got from many people when they learned she would receive no financial support during her maternity leave was that they couldn’t believe there weren’t any kind of benefits for someone in her situation.

“There is universal acceptance that this is a gap that needs to be fixed for the benefit of the public and the profession,” Fraser said.

Practice locums

In addition to the parental leave benefits, the working group proposes to set up “practice locums” to ensure that women in small firms have a practice to return to when they come back from maternity leave.

“The practice locum is long overdue in law. It’s used in the medical profession,” Warkentin said. “The law society will keep a registry of individuals who are prepared to offer their services as practice locums... If you need to take a leave of absence, there is someone who can serve your clients while you’re away so you don’t have to ramp down before you leave...You would be able to pay your overhead, your staff, your lease. The locum would receive a salary and your clients would be served.”

Fraser expressed strong support for the practice locum concept, particularly for women lawyers in a general practice.

“I think the (proposed practice locum group) is a fantastic idea,” she said. “I don’t know if it would have worked for me because my area of practice is so specialized. I don’t know very many people who do mental health and children’s rights who would have been able to look after my clients. But I think if you have a general practice where the work is something that somebody else can easily pick up, I think it would work very well.”

Newton-Smith found the practice locum idea to be less useful, with the proviso that it might work very well for lawyers in smaller communities.

“(The practice locum idea) doesn’t have a lot of relevance to me,” she said. “Finding people to cover for me has never been an issue. There are enough lawyers out there who need work. I know enough people and think that most people do who practise in a big city. You may have to distinguish that from private practice in a small community. In downtown Toronto, I have ten different people to call if I needed a client to be serviced when I wasn’t there.”

But everyone agrees that women in small firms need help with maternity leaves in order to stem the tide leaving private practice.

“The financial hurdles faced by female sole practitioners...are so big that the decision to have children really comes down to ‘can I afford to do it?’” Newton-Smith said. “The fear of not being able to have a family drives many women out.”