Is Mommy More Ethical Than Daddy?

Michael E. McCabe, Jr.Office of Enrollment and Discipline, Patent Ethics0 Comments

A former female colleague asked me once why nearly all of my clients are men.

Frankly, I had never given the matter any thought.  It took me awhile even to accept my colleague’s conclusion that nearly all of my clients were, in fact, of the male variety.  So I pulled out my list of clients I’d represented over the years, and realized that my ex-colleague was on to something– more than 95% of my clients over the years have been men.

Why is that?

I thought about possible explanations for the gender imbalance in my practice.

One way to look at this is that there are more male registered patent agents and attorneys than there are female. On the other hand, I represent quite a few trademark practitioners as well, and in that field of IP law the gender disparity dissipates.   So while overall there may be more male than female IP practitioners, any gender imbalance in the field of IP law is not so significant that it comes close to the imbalance I see in my own practice.

Which caused me also to look at how do I get clients.

Is my marketing somehow skewed towards one gender over the other?  I did not see anything overtly that shows any reason why my posts or speeches would somehow either attract a male clientele or turn away a potential female client.  If such gender bias exists in my marketing, I do not see it.  Nor does my wife, an attorney of 25 years who is my sounding board on just about everything and whose judgment is as close to flawless as it gets.  Plus, she had a significant role in the design of my blog and website.  So marketing, I have concluded, is not the answer.

I turned to my ethics colleagues in the Association of Professional Responsibility Lawyers and posed the same question.  Those that responded confirmed my own personal practice numbers. One of my APRL colleagues in fact said that he had never had a single female client in 40 years of practicing in the field of ethics.

That data point certainly gave me pause.  But, unfortunately, it still did not answer my “why” question.

I kept looking.

I reviewed the last ten (10) years worth of published disciplinary decisions of the US Patent and Trademark Office.  Those matters are posted on-line in the Office of Enrollment and Discipline “FOIA Reading Room.”  I found that, since January 1, 2007, there have been approximately 340 published disciplinary decisions posted.  Of those, roughly 270 involved male practitioners.  That to me reflected a statistically  significant gender-based disparity–approximately 80% of discipline IP practitioners over the past decade have been men.  It certainly helped explain why, in my IP ethics-based practice, nearly all of my client are male.

Still, the question remains:  Why the skew?

Two possible answers came to mind.  Mind you, these are just theories.

One is that the disparity in the numbers of disciplined attorneys may be a reflection on law firm culture in general, where there is still today a well-recognized “glass ceiling” that limits the ability of female attorneys to advance compared to their male counterparts.  This issue has been the subject of much academic and bar association study.  A 2013 article from Harvard Business Review, Solving the Law Firm Gender Gap Problem, discusses the gender inequality issues in law firm culture.  Similarly, an article published in 2016 by Stanford Lawyer notes that, according to the ABA, women have made up close to 50 percent of law school graduates since the 1990s, yet they make up only 18 percent of law firm equity partners.  Bridging the Law Firm Gender Gap (June 2, 2016).

Okay, so where does that lead us?  Are female attorneys less likely to get disciplined because they are less likely to advance to a particular station in law firm culture that exposes them to the types of decision-making that leads to violations of the Rules of Professional Conduct?  Perhaps there is something to this theory.  The idea is intriguing and I would submit that further study is needed before we make that logical leap.

There is a second theory, and it goes down fundamentally to differences between men and women when it comes to taking risk.

A renowned psychiatrist and clinician with whom I consulted on this very issue advised me that in his opinion, “women tend to be more risk adverse and more detail oriented (they don’t gloss over stuff and say it will work out, they do the analysis to the nth degree).”

According to my expert source, he sees this general aversion to risky behavior “with women attorneys for sure… women are often, due to their wiring, more group/relationship/family oriented, so that they often consider the impact of their behavior on others more than men do (it’s two overlapping bell curves).”  In addition, women attorneys “often aren’t doing things in a narrow focus kind of way that gets many of the men in trouble.”

There are interestingly cultural differences as well in how we, as a society, treat women versus men.  According to my expert, “we don’t like, as a culture, to punish women as much as men unless their conduct is quite heinous.”   But there is a flip side to this: “Women are judged more harshly if they deviate from their gender typed roles (of being nuturing, caring, etc).”

So to the point of this article, “Is Mommy More Ethical Than Daddy?”

Maybe.

It certainly appears that a variety of factors would support this conclusion.  But it is very complicated.  Numbers can be very misleading.  Getting behind the numbers and understanding what is actually going on and why requires a lot more study.  Perhaps a professor or curious student can dig into the issue further.

But if you ask me for my personal opinion, and we limit the players to where the “Mommy” in my question is my wife Lois (aka the World’s Greatest Mom), and “Daddy” is your’s truly, then answer is very simple.  Yes. Absolutely.

So, there you have it.

To all mothers on this the Mother of all holidays, I wish you a Happy Mothers Day.

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