A billable hours system measures an attorney’s economic value by how long one works, not necessarily the quality of the work. Client service demands value responsiveness and speed of delivery. The practice of law attracts driven and competitive people. These factors, and others, contribute to a profession that seems particularly inhospitable to successfully achieving a work/life balance.
The inability to achieve a work/life balance may be the primary source of dissatisfaction in the profession. The lack of balance between work and personal lives has led to more and more attorneys suffering from low productivity, insomnia, stress related illnesses or addictions and burnout. The American Bar Association has reported that the desire for more time to meet personal and family needs is one of the major reasons lawyers consider leaving the legal profession.
Equality Commission report illustrates problems
In early may, the Equality Commission and the MIT Workplace Center released a report which tracked the career paths of nearly 1,000 women and men in Massachusetts law firms. The sobering results reported a large scale exodus of women from the practice of law due to inadequate firm responses to family factors affecting women more than men.
The survey findings show that women and men enter law firms in essentially equal numbers, but women leave firm practice at every pre-partner level at a far higher rate than men – more than 30 percent for women and less than 20 percent for men. Consequently, there is an extremely low number of women among equity partners – the present ratio being 17 percent women, 83 percent men. The primary reason, according to the report, is the need for more time for family than the firms support. And this reason is borne out by what these women do when they leave. They do not opt out of the workforce. Nearly 80 percent move to workplaces that do allow the time they need, even if they are working fulltime.
"I was shocked at the results," said Kathleen M. O’Donnell, former Massachusetts Bar Association president and MBA representative on the commission at its outset. "I had no idea it was as bad as it is. To think that’s the case, when women have been entering law schools and the work force at roughly the same rate as men for 25 years, it’s astounding to me that only that small of a percentage are now calling the shots at big firms."
O’Donnell believes many women attorneys who want to have children go into the public sector because of the benefits available to them. "It appears firms are not handling it the same as the government."
She said that survey comments indicated that although big firms may have a program in place to take care of family responsibilities, the firms are "not as welcoming in reality to people exercising these rights as they are in setting them up."
That sentiment is echoed by Lauren Stiller Rikleen, executive director of the Bowditch Institute for Women’s Success and author of "Ending the Gauntlet: Removing Barriers to Women’s Success in the Law." She has found that some firms have great policies but their implementation is poor.
According to Rikleen, the continued failure of law firms to manage the integration of personal and professional lives cannot continue – it’s simply too costly for law firms to keep hiring, losing and replacing bright workers.
Flexibility is the key, said Rikleen. Firms need to be more flexible about peoples’ time during the day. "That is the number one opportunity for change and the least understood and used. We now have these technological tools and have figured out how to use them to tether us to the office around the clock, but we haven’t figured out how to use them to free us up as we should. We need to think about how to work from home and how to be parents in the work place."
Rikleen is confounded by the institutional bias against reduced hours or flexible hours. "We are all part-time lawyers to our clients. We are in a profession in which we are always part-time to somebody, so why do we have such a hard time with the notion of a reduced workload while someone addresses parenting issues?"
A matter of choice?
Both Rikleen and O’Donnell bristle at the suggestion that employers may simply be penalizing a woman’s choice to spend time outside the office, not holding her gender against her.
"We live in a society in which the primary obligations of raising children still tend to fall more often on women than men, as demonstrated by the MIT study," said Rikleen. "Men who are succeeding are married to people whose careers become less important in the household in order to take care of family obligations. That gives men greater freedom in the workplace. Women don’t have that kind of support at home; their husbands are also in demanding careers, and society’s expectation of a mother’s role continues. To say it’s ‘a choice you make’ is a false choice. You are saying you have no right to be a good lawyer if you want to be a good mother."
"Who has to make those choices in 90 percent of those cases? In reality, women don’t have the ‘choice’ – they have to do this. It’s just the way it is," said O’Donnell.
"The word I hate most in this discussion is ‘accommodation,’" added Rikleen. "It implies permission. Were not talking about permission to be a good parent, we’re talking about a stronger workplace. We are creating a stronger workplace if they have the tools and flexibility they need to be both good parents and good lawyers."
Julia Huston, of Bromberg & Sunstein LLP in Boston and president of the Women’s Bar Association of Massachusetts, believes law firms need to present their attorneys with fair choices with respect to balancing work and family obligations. "Law firms can influence that choice by making it so unattractive to work at that firm on a reduced hours basis that effectively there is no choice. A firm that would not consider advancing a part-time associate to partner is exercising a major influence over that attorney’s choice. The same is true with respect to not giving attractive assignments or opportunities for assignment," said Huston.
Although the Equality Commission’s report and Rikleen’s book focus on gender issues and the impact of institutional issues on women, they highlight the struggle to find a work/life balance faced by both men and women.
The path not taken
ThirdPath Institute, a Philadelphia non-profit, is bringing leading lawyers around the country together to tackle their own work-family challenges. "Their personal desire for change has many ripple effects for everybody in the organization," says Jessica DeGroot, who founded ThirdPath in 1999 to explore ways to redesign work and private life to create more time for family and other priorities.
By stepping out of the debate about part-time lawyers and instead focusing on leaders living more balanced lives, ThirdPath has begun to uncover some of the opportunities and challenges of truly shifting the paradigm for everyone. "For example," said DeGroot, "we learned that leaders can redesign their jobs, but they need a unique skill set to figure out how to have a more balanced life…Our work demonstrated that yes, leaders can live and model more balanced lives, and we also learned that when they do this, there’s a positive impact for the entire organization."
According to ThirdPath, there are four significant factors influencing a person’s ability to live a "balanced" or "integrated" life: when you work, where you work, how much work you do and who does the work. Leaders can flex all four dimensions, but in different ways. For example, technology affects when and where you work. Alternatively, how much you work may offer lots of flexibility in the long run, because a firm can decide how many attorneys to hire, but there is very little flexibility in the short run, such as when a client needs an instant answer but an associate doesn’t have the skills.
DeGroot believes that in considering flexible scheduling policies, firms must look at each job to see where there is flexibility in that job. A receptionist can’t flex hours. For lawyers, the focus is on how much work people take on. "When we talk about balance, billing 2,000-plus hours and business development, that’s a bit of a challenge for anyone to have a balanced life," she said.
ThirdPath found the first barrier preventing more industry leaders from creating a better balanced life was economics. The second was how economics and gender play out. "The bottom line is 80 percent of women have children, so about 80 percent of men have children, therefore a majority of people are balancing work and the care of a young one," said DeGroot. "But family systems have strong beliefs about outside care, often because economic and gender norms play out in very traditional ways. A huge part of what we do is to assist 21st century organizations to support men and women to create time for family or community, because if you create solutions where just women make time for family, you never really make change."
ThirdPath also notes that additional factors which people must be willing to examine in order to fully assess their options around work life balance are their own personality, skill set and desire for balance, as well as influences from their home life. Furthermore, the ability to redesign work is also dependent on the skills of the individual’s team and the support of his or her organization.
According to DeGroot, a number of small law firms ThirdPath has been working with are beginning to step out of the career-family "catch 22" by having leaders at the very tops of their organizations redesign their jobs, and by developing a new economic model where they create a robust, client-centered business that thrives at 1,600 billable hours.
However, large law firms face different constraints. For example, if a large firm decides to reduce the hours everyone works and have reduced income, it may worry they put everyone’s livelihood at risk because it would no longer be able to afford to pay its rainmakers competitively. And for any firm where 80 percent of its income is earned by 10 percent of its partners, having even one rainmaker leave could cripple the business. ThirdPath finds that this "rainmakers dilemma" appears to be one of the key obstacles to creating wider change in large firms. It also may prove almost impossible to build consensus that less work for less pay is the preferred approach.
"The career-family catch 22 and rainmakers dilemma demonstrate that in order to make change, we need to look at the system as a whole – how everyone manages the interconnecting responsibilities of work and family – both from a time and economic perspective," said DeGroot. "Instead, too often these decisions are made ‘privately’ and they contribute to battle lines at work. And in organizations that are overworked and reward face time, these battle lines often extend beyond gender – pitting ‘single’ people against ‘people who want time with their families’ or pitting those who value time against those who value financial rewards. Ultimately, lasting change can only occur by eliminating this divisiveness of time, money and gender."
Role models in the legal community
One local firm is leading by example, recognizing that it is not always in the attorneys’ best interests or the clients’ best interests to continually push for more billable hours. Lowrie, Lando & Anastasi requires its 20 lawyers to work 1,600 billable hours per year, rather than the 2,000-plus required to be "successful" at many firms. The practice thrives, says founder Matt Lowrie, by charging less, cutting costs by being based in Cambridge instead of Boston, and offering clients the benefit of fresh, energized lawyers.
The firm prides itself on "providing an environment where learning and serving are paramount and where counting the number of billable hours that one can squeeze into a day takes a back seat."
It requires 1,600 billable hours to allow the attorneys time to meet their other professional and personal goals. If an associate bills more than 1,600 hours, his or her salary goes up proportionately, remaining comparable to firms requiring more hours. Their philosophy is that, rather than driving their attorneys to exhaustion, this approach allows each attorney to be more responsive to clients and have more time to deal with client emergencies. The firm’s Web site even includes information on each attorney’s outside interests.
Kevin Littman, an associate who joined Lowrie, Lando & Anastasi last August, says the firm’s alternative schedule attracted him. In addition to his professional responsibilities, he is balancing taking care of two small children, running and accommodating his attorney wife’s schedule.
Littman says the reduced hour requirement takes the pressure off of thinking about work in terms of just trying to make hours and allows attorneys to concentrate on servicing clients the best they can.
"To the extent you’re busy, it’s just like any other place," he said. "You have times where you have to work hard and put in long days, but if you don’t have that, there’s no reason to put in long hours just to make billable hours. As a result, I think it enables you to have more flexibility to do stuff outside of work, like your commitments to family. We do a good job of serving clients and putting them first when we need to as well."
In 2004, in what appeared to be an industry first, K&L Gates (then Kirkpatrick & Lockhart) hired a director of professional and personal life integration. The director’s task was to help the firm’s lawyers successfully balance work, family responsibilities and other life and career changes. As a result of interviews with the firm’s attorneys, the firm developed its "balanced hours program."
Roz Pitts, K&L Gates’ director of legal recruitment and professional development, now supervises that initiative. "The balanced hours program enables lawyers to adjust their working schedules to meet their personal needs," said Pitts. After working through a lengthy, objective and consistently applied period of introspection and counseling, and after receiving input from a supervising attorney, the firm helps the attorney put together a modified work schedule proposal.
"It could be reduced hours, telecommuting, flexible work schedules or a compressed work schedule. It could be a combination of any of those things or something more creative that I haven’t thought of – they can throw it in as well!" said Pitts.
Pitts feels open communication is key to the success of these schedules. "The more honest and open an approach we can take, the better chance we have of addressing issues that might arise early on."
She was pleased to point out that there is a presumption of approval.
"We’ve done a really good job creating an accepting firm culture for this program," said Pitts. "It was supported from the beginning by management and developed collaboratively. The more lawyers that participate, the more success stories we have, the more positive social change we have, the more accepting everyone has become."
The firm of Edwards, Angell, Palmer & Dodge LLP has a women’s initiative and diversity officer and emphasizes that "the firm’s ability to recruit, advance and retain attorneys is enhanced by a strong commitment to policies and programs that support both women and men seeking to balance professional and family life."
Akiyo Fujii is senior counsel at the firm and works on a 60 percent of a full time equivalent herself. She also helped define the Palmer & Dodge pre-merger flexible schedule policies. After the firms were combined, a flexible work schedule was one of the first policies implemented.
One thing the firm tried to make clear after the merger was that it does not view flexible arrangements as an "accommodation." Its policy is intended to be flexible enough to let people be great lawyers, but also to be able to engage in other activities they find important in their lives. According to Fujii, "It’s good for the firm, it’s good for business, it’s good for client representation, and it’s good for the firm environment that we have people on alternative work arrangements. It retains the best lawyers."
As Fujii explained, the firm’s policies address the lawyers’ concerns that attorneys on reduced or flexible schedules still seek professional challenges and advancement opportunities. But it also takes into consideration a large firm’s interest in meeting its clients’ expectations of attorney availability 24/7. Flexibility seems to always be the key.
"It is difficult to make reduced time arrangements work if you say you’re only coming in on these three days and are not available for the other two at all," said Fujii. When Fujii has increased business transactions, she increases her hours, and when things slow down, she takes more time off. "If I told you I never work on a weekend, that would be a lie, and I do have late nights, but I try to balance it on other days that I may leave earlier than other people."
Fujii added, "I know first-hand what is like trying to work part-time and not getting the support to make it successful. It really does require a commitment on the part of the firm, as well as the executive committee and senior lawyers, to make it work."
Family responsibility discrimination
Huston, the WBA president, pointed out that the Equality Commission report suggested some steps that law firms can easily and readily take to make their reduced hours programs more effective in stemming attrition. "For example, it’s critically important that a person with a reduced hours schedule not be penalized by receiving less attractive assignments," said Huston. "You would think that wouldn’t be an issue, but it is. That’s one of the problems we saw come up again and again in the survey results."
Law firm managers will sometimes make assumptions about the kind of assignments that attorneys on reduced hours schedules are willing to take, such as assignments that involve travel, said Huston. "It’s wrong to make those assumptions."
In fact, it may raise the issue of family responsibility discrimination. FRD is a legal and social science term that experts have coined for the growing phenomenon of employees suing employers for discriminating against them because of their caregiving responsibilities at home.
Because there is no federal law on the books expressly prohibiting caregiver discrimination, FRD plaintiffs have pursued their claims under a variety of state and federal laws. The most commonly used laws in FRD lawsuits are Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act and the Family and Medical Leave Act.
Individuals with caregiving responsibilities may encounter career-limiting biases through employer stereotyping. Writing for the Supreme Court in 2003, Chief Justice William Rehnquist noted that "the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest."
Sex-based stereotyping about caregiving responsibilities is not limited to childcare and includes other forms of caregiving, such as care of a sick parent or spouse. Women with caregiving responsibilities may be perceived as more committed to caregiving than to their jobs and as less competent than other workers, regardless of how their caregiving responsibilities actually impact their work. Male caregivers may face the mirror image stereotype: that men are poorly suited to caregiving. As a result, men may be denied parental leave or other benefits routinely afforded their female counterparts.
Employment decisions based on such stereotypes violate the federal antidiscrimination statutes, even when an employer acts upon such stereotypes unconsciously, reflexively or beneficently. As the Supreme Court has explained, "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group."
Although some employment decisions that adversely affect caregivers may not constitute unlawful discrimination based on sex or another protected characteristic, the EEOC strongly encourages employers to adopt best practices to make it easier for all workers, whether male or female, to balance work and personal responsibilities.
According to a recent EEOC Enforcement Guidance, "there is substantial evidence that workplace flexibility enhances employee satisfaction and job performance. Thus, employers can benefit by adopting such flexible workplace polices by, for example, saving millions of dollars in retention costs." The guidance cites the example of the accounting firm of Deloitte and Touche, which calculated that, based on the proportion of workers who said they would have left in the absence of flexible workplace policies, the firm saved $41.5 million in turnover-related costs in 2003 alone.
Robert Sanders, director of the Boston area office of the Equal Employment Opportunity Commission, said there have been no FRD claims in New England, but added, "arguably because it’s new and the public isn’t really aware of it."
Are there professional drawbacks to seeking a work/life balance?
Those who seek equilibrium in their work/life balance must consider the pros and cons of their choices. How can one be a full-time caregiver and a full-time attorney? How can one balance personal pursuits with professional demands? What are the priorities?
When asked if a part-time schedule had hindered her legal career in any way, Palmer & Dodge’s Fujii paused briefly, and with apparent reserve, said that she had not made partner. But she then resolutely added, "What I really wanted out of a legal career was to be able to work on challenging and exciting deals and to have great relationships with clients, and that I have. So in that way, going on reduced time has not hindered me to reach my goals as a lawyer. For some people, for those whose ultimate goal is to become a partner, it might be more difficult."
K&L Gates claims that its balanced hours program is no barrier to partnership. But Pitts pointed out that lawyers are very hardworking people, and when a lawyer chooses to go on a reduced hours program, they still have that drive. "It’s hard for them to cut themselves back. They have their own internal pressures," she said. "They do want to spend time with children but still feel the pull, they have that project they want to work on and ‘if I just put in a few more hours I’ll get it done.’ It’s difficult for them to balance it."
She also reinforced what others have said: it’s difficult in the practice of law to manage the schedule because the deadlines and client demands are not neatly defined. A client emergency might happen on a day off or during the hours that had been cut back.
"The schedule can be difficult in this industry, but if you’re determined to do it and you’re flexible, and if you have a firm determined to do it and it’s flexible, I think you can find a balance," said Pitts.
Huston believes that women are not advancing in the profession at the same rate as men in part because of the demands of the job and the number of hours it typically takes to have a successful law practice. "Many people, both men and women, find it difficult to juggle the demands of practicing law with family obligations."
She notes, "Traditionally, men have been more willing to sacrifice their family time. But in order for law firms to retain their women talent, they have to acknowledge that attorneys need to balance their work lives with other commitments and may occasionally need time off or a reduced-hour schedule. Law firms need to understand that this does not signify a lack of commitment to the profession. Attorneys should ultimately be evaluated not on the amount of time they spend in office, but on the quality of legal work and the services they deliver to clients."
The WBA has been actively engaged in identifying and working to remove barriers to retaining and advancing women in the profession for years. "This issue is critical to the Women’s Bar Association. It is absolutely central to our mission," said Huston.
In addition to its work with the Equality Commission, over the next several months, the WBA will be developing a strategy for addressing the problem in Massachusetts, not just at law firms, but at other legal organizations, such as government agencies, private companies, in-house counsel, legal services and non-profits as well. In addition, the WBA is currently engaged in studying where women attorneys work in Massachusetts and what reasons they report for their career choices.
"For many years, law firms have had a terrible track record retaining women attorneys and advancing them to the partnership level," said Huston. "It’s clear that a big part of the problem is the failure of firms to foster a healthy work/life balance. This is going to continue to be a problem for women and is increasingly a problem for men. We live in a culture that recognizes the importance of families. Law firms need to recognize that."