Testimony of Francis P. Devine, III, Chancellor
Philadelphia Bar Association
Third Circuit Task Force on Equal Treatment in the Courts
Thursday, October 24, 1996, 2 P.M.

Distinguished members of the panel. I am Francis P. Devine, 1996 Chancellor of the Philadelphia Bar Association. It is my privilege to testify before you on behalf of the 14,000 members of the Philadelphia Bar Association. We are appreciative of the Court’s continuing interest in this matter, mindful of the Philadelphia Bar Association’s longstanding concern with issues regarding gender, race and ethnicity and aware of our mutual commitment to equal justice under the law. In 1996 it simply cannot be said that there is no racial or gender bias. You don’t have to be a woman or a person of color to feel the sting. We simply must see that the bias ends.

First off, I want to commend the Third Circuit for initiating this process.

It is fitting to note that the 60 members of your Task Force and its Commissions comprise a diverse group of judges, attorneys from both private practice and the public sector, members of academia, and representatives of the Court staff and the public.

Your goal of examining the effects of race, ethnicity and gender on the people and process of the Courts of the Third Circuit is an admirable one.

And it is important to focus on the fact that you are specifically charged with looking at the effects of these factors. Certainly, we cannot deny that such factors do exist, and our focus must rightly be on the manner in which, and the degree to which, they affect the work of the justice system and the Courts.

I believe you have also made a wise decision in drawing a distinction between issues involving possible gender bias and issues involving racial and/or ethnic bias. Our Association believes these are entirely separate and distinct matters and they do not necessarily overlap. At the Philadelphia Bar Association, and within the profession, our experience has been that we must view these as separate and distinct matters. Therefore, I am pleased to note that you have created two separate commissions -- one on gender and one on race and ethnicity.

The Task Force has also demonstrated wisdom in conducting a survey of attorneys, employees, and judges and in holding focus groups in an attempt to gather information in an orderly, practical and reasonably scientific manner. Though other surveys have been conducted in other jurisdictions and at other levels, the production of a final report and survey specifically for the Third Circuit is the right way to proceed.

We are more than pleased that the Commission has decided to be as inclusive in this process as humanly possible and to solicit information and views from the largest possible number of people with a clear effort being made to reach all segments. Reaching out to organizations, interest groups and members of the community with direct experience in the federal courts within the Circuit is a smart move.

At the Philadelphia Bar Association we believe in examining all issues relating to gender, race and ethnicity and their impact on justice and the justice system as broadly and thoroughly as possible.

Let me speak first about gender issues. As a leader of the organized bar in this city, I really cannot talk about this subject without discussing issues involving women in the profession. If participants and litigants do not see women in the courtroom as attorneys, as judges, and in important roles in the justice system, then, that, in and of itself is bound to have an effect not just on perceptions, but on realities as well, and probably even on outcomes. At the Philadelphia Bar Association, we believe in the advancement of a stronger, fairer, more diverse profession, and we have recognized the need to actively, persistently, and methodically address issues relating to women in the profession such as gender parity. We formed a task force on Gender Fairness.

As Bar leaders reviewed the results of the Association’s comprehensive survey of the profession in 1990, the results showed that the number of women lawyers in Philadelphia had increased from 15.3 percent in 1984 to 25.2 percent in 1990. Now, the Bar’s 1995 Survey of Philadelphia Lawyers indicates that the figure has increased to 29.6 percent. That represents a nearly 100 percent increase in the number of women lawyers in little more than a decade.

While parity eventually may be achieved on a purely numerical basis, economic parity between women lawyers and their male counterparts still seems a long way off.

Two additional studies bear this out.

One report, produced by the Committee On Women in the Profession of the Association of the Bar of the City of New York, says that men are three times more likely than women to be elected partner in large New York City firms. Regrettably, the number of women partners in New York City still does not reflect the number of women available for partnership, even with a steady increase in women partners up through 1990. The study also showed that first-year male associates hired between 1973 and 1981 had a rate of promotion to partner (after eight years of practice) of 21.5 percent. The rate for women was 15.2 percent.

Furthermore, while the number of women in current law school graduating classes stands at about 43 percent nationwide, very few cities show a proportionate number of women among law firm associates. Fortunately, in this category, Philadelphia ranks near the top. Here, according to a recent survey by the National Association for Law Placement, 43.8 percent of all Philadelphia associates are women. Among 15 major cities, we rank third, surpassed only by Seattle and San Francisco. Unfortunately, we don’t do nearly as well in the category of women partners. There (with 12.8 percent) Philadelphia ranks 13th. And the earnings gap for men and women remains wide. Our 1995 survey shows that women lawyers under age 35 lag 16 percent behind their male counterparts in annual income derived from the practice of law. Women lawyers in the 36-to-50 age group earn 30 percent less than men. Finally, women lawyers surveyed in the over-50 age group lag 44 percent behind their male counterparts in annual income.

While large numbers of the women lawyers surveyed work in the government sector or for public-interest agencies and numerous others report they work part-time, the income discrepancy is still significant.

Among several initiatives, we’ve set in motion a Statement of Goals of Philadelphia Law Firms and Legal Departments for the Retention and Promotion of Women. This statement, adopted by our Board of Governors, provides us with a blueprint for full and equal participation of women, and improved retention and promotion rates for women lawyers. It enrolls participating law firms and legal departments in an aspirational program that is committed to the advancement of women and, by extension, the advancement of the profession. The Statement of Goals recognizes that equal opportunity for all isn’t just the right way to go, it’s also the smart way to go.

Forty-six law firms or corporate legal departments have already have signed onto the statement. Equally important, however, is increased participation in the Bar Association’s Committee on Women in the Profession. The committee is working diligently this year to provide programs and activities to advance the status of women lawyers. For example, the committee sponsors forums and CLE courses and administers an ongoing mentoring program in addition to continuing to monitor the progress of the Statement of Goals effort.

Now the importance of all this would seem to be evident. A climate must be created in which women are full partners in the court system, in the justice system, and in the profession. This must be a climate in which women are given maximum opportunity, are treated fairly and equitably, and are rewarded equally for their work. It must be a thoroughly inclusive climate and the Philadelphia Bar Association is committed to these goals.

In such a climate, everyone who holds a position of any type in the modern workplace (and this, of course, includes law firms and the offices and departments of the court system) must take the utmost care to treat everyone with respect. This need not be a complicated consideration. It is a matter of common sense and sensitivity to the rights and feelings of others.

And these concerns rightly bring me to the second area of discussion, which is racial and ethnic bias. Though I have already pointed out that there are separate and distinct considerations in each area, when we address mutual respect for individuals and equal opportunity, there is also some overlap. To strive to eliminate all prejudices is to work to include all individuals regardless of gender, regardless of race, regardless of ethnicity or national origin.

At the Philadelphia Bar Association we have confronted racial and ethnic discrimination on two fronts. First, we have appointed a task force on racial and ethnic fairness in the justice system to examine issues relating to our local Common Pleas, Municipal and Traffic Courts. This task force, composed of judges, lawyers and community representatives, is chaired by the Honorable Lydia Y. Kirkland, Judge of the Municipal Court. Their work has been ongoing and they have already developed numerous initiatives. The Task Force has an executive committee that includes many prominent judges and civic leaders. It would be impossible for me to detail for you all of their considerations and discussions up to this point. But right now one of their most important projects involves planning for a series of town meetings to begin a dialogue between the Bar, the court, the District Attorney’s office, the public defenders office and the Bench and Bar to study the effects of racial injustice as it manifests itself within the justice system. Court reporters will transcribe the discussion so a permanent record can be preserved. In the beginning the town meetings will focus solely on the role of the Bar in the workings of the justice system. But as they continue, depending on the success of the efforts, these sessions can be expanded to embrace broader and more diverse concerns.

Already, we have seen that our Task Force on racial and ethnic fairness in the justice system has produced positive effects. Proposals have been submitted to the Administrative Governing Board of the First Judicial District. All were warmly received; some have already been implemented. Like you, we have brought people together to talk about these matters, think about these matters, and hopefully act on areas of mutual concern. This in and of itself is a great accomplishment. No one feels attacked or threatened. Our local court system has been very cooperative. The dialogue is open. The judges and their staffs have been forthcoming. Our leaders will be leaders, in the court, at the Bar and in the community.

Let me point out as well that our interest in racial and ethnic fairness in the justice system precedes even the most recent events which brought this issue into the national spotlight which occurred in a courtroom in Los Angeles about a year ago. In November, 1993, the highest elected officials of the Philadelphia Bar Association petitioned the Supreme Court of Pennsylvania to create a commission to look into the possible presence and effect of racial and ethnic bias in the Philadelphia justice system. At that time, information was collected by a special commission of our Association composed of 11 Common Pleas Court judges, 12 lawyers in private practice, 8 representatives of public agencies, 2 law school professors, 4 law school students, a state legislator and 2 court administrators. That commission developed demographic data relating to Philadelphia, reviewed numerous and well-documented reports by commissions in other jurisdictions, and ultimately filed, on behalf of the Association, an 82-page brief in support of its petition.

At the time that we filed our brief here in Pennsylvania, 15 states and the District of Columbia had already formed commissions or task forces to examine the presence of racial and ethnic bias in other justice system. Thirty states now have such commissions. Our neighbors in New Jersey and New York were among those states. What we have found, where commissions have reported their findings, is that they have reported not only the presence of racial and ethnic bias in their justice system, but evidence of its existence and its effect on racial and ethnic minorities. New Jersey, for one, has already completed its state-wide study and the court system there is voting on its commission’s recommendations.

For our part, in Philadelphia, in 1993 we suggested that a deliberate, ongoing process is necessary to determine:

• the extent to which racial barriers may impede minority access to the courts;
• the extent to which linguistic barriers may deter minority utilization of the court systems;

• the extent to which psychological barriers may create apprehension regarding the legal process by minority group members; and

• the extent to which economic barriers may prevent the minority poor from pursuing legal resolution of disputes, and the extent to which the unavailability to counsel may further discourage minority participation in the legal process.

Since 1993, our Supreme Court has been committed to the notion of a commission. Yearly, it has sought appropriations for the Pennsylvania General Assembly and every year the request has been denied. Ironically, Acel Moore has a column on this subject today in the Inquirer. In it he echoes our plea for funding for this project. In Philadelphia, our task force will shortly be submitting a grant request to the newly formed IOLTA board to, at long last, fund such a commission. Perhaps this is what the Pennsylvania Supreme Court had in mind when it said IOLTA funds could be used to improve the administration of justice. We have waited patiently for years; the time for funding a commission has arrived.

This is a concern as fresh as today’s headlines, but it must be reviewed in a clear, thorough, rational and dispassionate manner.

That’s what the justice system is supposed to be all about.

That’s why lawyers and judges are supposed to review such matters.

So it seems to me that if we carry out our duties responsibly in accordance with our knowledge and training, there is a very positive and beneficial role for us to play here.

Another area where the Philadelphia Bar Association has been involved concerns equal opportunity for advancement of racial and ethnic minorities within the profession. In 1993, the Philadelphia Bar Association promulgated a Statement of Goals requesting area law firms and legal departments to undertake their best efforts to accomplish the following:

1. Seek participation of minority lawyers at all professional levels in the law firm or legal department;

2. Achieve a minority lawyer hiring goal of at least 10 percent over the next 5 years;

3. Improve the rate of retention of minority attorneys employed by law firms and institutional legal departments; and

4. Insure equal opportunities for minority lawyers to achieve partnership or senior counsel status.

The aim of this Statement of Goals is to welcome, encourage and advance minority group members on a level playing field. Once again, our action was prompted by demographic data and studies which showed that minorities were not entering the profession at the same rate as others, were not being retained at the same rate, and were not advancing at the same rate. This Statement of Goals was unanimously approved by the Board of Governors of the Philadelphia Bar Association and thus far 48 law firms and 22 legal departments have pledged to work to carry out its various elements.

We believe that equality in the profession and equality in the justice system go hand in hand. We have tried to initiate reasonable, effective, active efforts to promote equality at every level wherever and whenever we can.

We stand ready to support the Third Circuit and assist it in any way we can with this process. We pledge our complete support and we would be happy to make available to your Commission all appropriate studies, information, or any other resources which we have gathered. We very much want to see this effort succeed.

On an inspiring note, then, let me conclude with the words of two fine woman lawyers. The late Barbara Jordan summed it all up when she said:

“I want everyone to work together in a spirit of cooperation and accommodation without anyone being woefully violated personally or in terms of his or her principles.”

I submit to you, members of the Commission, that such a goal is practical, admirable and reasonable. This city is the home of the Philadelphia lawyer. As my friend and colleague Rhonda Hill Wilson often says, Philadelphia is the city of brotherly love and sisterly intensity. Surely we can do better.