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Legal Professions and Job Demands: Implications for Work/Life Balance (2007)
Author:
Joan C. Williams
, University of California—Hastings College of the Law
Date: 10/15/07
Basic Concepts & Definitions Most research on work/life issues in the legal profession focuses on the experiences of attorneys who work in private law firms. In private law firms, the unit of measurement is the “billable hour”; the more hours a firm can bill clients, the more money it can bring in. As a result, attorneys who work in private law firms are evaluated and rewarded in large part based on the sheer number of hours they can work. Other types of legal practice, however, are by no means immune from work/life conflict. Billable hours may not govern the other major types of legal practice in which lawyers engage--that is, as “in-house” counsel for a business, in the public sector, or at a public interest organization--yet the expectations of long hours, constant availability, and devotion to work still pervade. While this entry, like the bulk of the research on the topic, focuses primarily on work/life issues at private law firms both big and small, it also briefly identifies work/life issues among in-house, public sector, and public interest attorneys. Law firms. The most common workplace for practicing lawyers is a law firm. More than half of employed law school graduates obtain their first job out of law school at a law firm (NALP, n.d.). In 2004, of the 56.2% of law graduates who went to law firms, 36.4% went to large firms of more than 101 attorneys, 3.6% worked alone as “solo practitioners,” and the remaining 60% were working at firms of between 2 and 100 attorneys (Ibid.). In recent years, large firms have experienced a wave of mergers, and the largest firms now number over 1000 lawyers. Large, urban firms typically offer prestigious law firm careers with the highest salaries. Salaries in the highest-paid firms just reached $165,000 for a graduate fresh out of law school. These six-figure salaries are accompanied by very long work hours, a phenomenon arising from two separate forces: increasing associate salaries and firms’ desires to keep their “rainmakers.” The extremely long work hours now required by most law firms have made it increasingly difficult for any law firm lawyer to balance work and family responsibilities successfully. The spiraling upwards in associate salaries began during the dot-com boom of the 1990s, when law firms in California’s Silicon Valley found that associates were leaving in droves to work in technology start-ups. Law firms raised their salaries in an attempt to compete with the stock options that start-ups offered, but they could not. The increase in associate salaries has outlasted the dot-com bust, under the belief that top salaries are now needed to attract the best young lawyers. Once one top law firm raises salaries, others follow suit to stay competitive. Coupled with growing salaries is the fear that “rainmakers”--the partners who bring in the most business--will leave a firm unless it has very high “profits per partner.” The importance of this figure is driven in significant part by The American Lawyer magazine’s annual listing of the top firms, which uses profits per partner as one of the components in calculating its ranking of “A-list” firms (2006). The attention focused on profits per partner has led many firms to create two-tier partnerships. The top tier consists of “equity partners,” who share in the ownership of the business; the bottom tier of “income partners,” who are more like employees and usually do not have the same kind of management control as equity partners. The top tier typically includes a highly disproportionate number of white men, as minorities compose only 4% of partners--equity and non-equity combined--in major law firms (Frater, 2004). Many law firms feel caught between the pressure of high associate salaries and profits per partner. The result is a sharp ratcheting up in the average hours associates work. Given that law firms bill clients by the hour, having associates work more hours is seen as the key to raising profits per partner. In the 1960s, 1300 billable hours per year was seen as a full-time schedule. Today, the average associate in a San Francisco law firms bills a staggering 2200 hours a year, which works out to 8:00 a.m. to 8:00 p.m. every weekday, plus seven hours every other weekend, with 15 days off a year total for vacation and individual holidays (Sarkisian, 2007). Young lawyers have become increasingly more vocal about their dissatisfaction over high billable hours requirements, and law firms have instituted part-time policies in response to their concerns. Indeed, 96% of large law firms now report allowing part-time work, either through a policy or on a case-by-case basis (NALP, 2006). Yet while most firms have part-time policies on paper, usage rates of such policies are extremely low, only 5% of attorneys according to NALP (Ibid.). This is because of the stigma associated with part-time work and the propensity for “schedule creep”--when a part-time lawyer’s hours creep back towards full-time, so that the lawyer ends up working close to full-time hours for part-time pay. (These phenomena are discussed further in “Implications for Practice & Policy,” below.) Moreover, while a recent National Association for Law Placement (“NALP”) study indicates that 41.6% of corporate counsel respondents and 45.9% of law firm respondents would be willing to make less money in order to work fewer hours (Fortney, 2005), many law firms still believe that young lawyers really want the highest salaries they can get. This misconception reflects the underlying problem of the “all or nothing” nature of most law firm practice today: Most associates must either devote themselves entirely to work, working extreme hours for extreme pay and a chance at partnership or, if it is even available, accept a marginalized, economically penalized “part-time” schedule that knocks them off the partnership track completely. Many young attorneys join firms expecting to stay only a few years, to take advantage of the prestige value of a law firm job, make contacts, and pay off their hefty law school loans--and then they leave. The most recent figures show that a staggering 78% of associates have left their firms by their fifth year of practice (Spanhel & Patton, 2005). Attrition in law firms is double what it is in most industries (Cunningham, 2001). While some large law firms may rely on attrition as part of their business model, to shed attorneys who do not become partner and increase per partner profits, attrition based on schedule rather than talent remains problematic. Law firms are not necessarily “keeping the keepers” (NALP, 2003)--the most talented attorneys who the firms want to keep, rather than just those attorneys who can work 2200 billable hours per year. “In-house” counsel. After law firms, the second most common type of legal practice for lawyers is working directly for a corporation or other business as “in-house” counsel. Traditionally, in-house lawyers were lower in status than law firm lawyers, and lawyers from less prestigious law schools were more likely to go in-house. This perception is changing, as the status of in-house jobs is rising. Top law firms are still seen as the pinnacle of the profession; however, in-house lawyers are now much less likely to be seen as lawyers who were not “good enough” to get a law firm job. The conventional wisdom is that “going in-house” is a way to achieve greater work/life balance. The one full-length study conducted in 2003 by the Project for Attorney Retention (“PAR”) (which the author co-directs) found that going in-house does not inevitably lead to less work hours. Some in-house lawyers reported that they had taken a pay cut in exchange for a better work/life balance; however, once they started working in-house, they found themselves working as hard, or harder, than they did at law firms (Project for Attorney Retention, 2003). With that said, typically, corporate law departments are far more variable in terms of hours than law firms. The norm for in-house departments is an 8 a.m. to 6 p.m. schedule, with relatively rare weekend work, and vacations that are rarely interrupted or postponed due to work--a significant benefit, given a NALP study that showed that law firm lawyers have a higher number of vacation days interrupted by work than in-house or government attorneys (Fortney, 2005). For many in-house lawyers in the PAR study, the fact that they could get home for dinner, have most weekends free, and not cancel vacation plans represented a drastic improvement in their work/life balance (Project for Attorney Retention, 2003). Nonetheless, many lawyers reported that getting a part-time schedule was more difficult, or impossible, in-house than in law firms (Ibid.). Despite the unavailability of part-time arrangements, PAR found that many in-house lawyers were able to participate in job sharing--as compared to no law firm lawyers at the time of the study (although some firms are now exploring this option)(Ibid.). Public interest law. Public interest law--that is, working as an attorney for a private, non-profit public interest organization (as opposed to working for the government)--is also variable in terms of work hours. In some public interest jobs, particularly in women’s organizations, providing work/life balance is seen as an integral part of the politics and the mission of the organization and is expected given the lower salaries public interest attorneys earn. In other public interest jobs, long hours are the norm due to tight funding and a culture of dedication to the organization’s important and pressing work. This can create an environment in which reduced schedules do not seem plausible. Work/life conflict in the legal profession, particularly at private law firms, has received significant attention from organizations designed to advance women in the legal profession. This is not surprising given the startling reality that today, only 17% of major law firm partners are women (O’Brien, 2006), despite the fact that close to half of all law school graduates have been women for the past 15 years. Such organizations include the American Bar Association Commission on Women in the Profession; women’s bar associations throughout the country; and some state or local bar associations, notably in San Francisco and Massachusetts, with the help of Mona Harrington and others from the MIT Workplace Center. In addition, the Project for Attorney Retention, founded in 2000 and funded by the Alfred P. Sloan Foundation, has served as a driving force in this arena, and its work was recognized in 2006 when its co-director received the Margaret Brent Award for Women Lawyers of Achievement. No matter in what context they practice, attorneys experience work/life conflict--like many professional workers in the United States--due to employers’ expectations of total work devotion and constant availability. Such expectations are only exacerbated by recent technology that has further blurred the line between working and non-working hours: While the rise of cellular phones, email, and wireless devices (such as blackberries) has arguably made telecommuting and working non-standard hours easier, it also means that legal employers, and some clients, expect their attorneys to be ever reachable and responsive.
Another contribution has been the responsiveness of legal employers (who may understand the risks of legal liability better than other employers) to the growing trend of lawsuits alleging family responsibilities discrimination (FRD)--that is, discrimination against workers based on their (real or perceived) family caregiving responsibilities for children or elderly or ill parents or partners. The Center for WorkLife Law (which the author directs) has documented a nearly 400% increase in the number of FRD lawsuits filed in the past ten years as compared to the previous decade (Still, 2006). In addition, the Center’s recent article on 32 lawsuits in which legal employers have been sued for FRD (most of the cases involving mothers) has led the general counsel of law firms to take the growing potential for legal liability very seriously (Williams, Bornstein, Reddy & Williams, 2007; Williams, 2007). Law firms are early adopters in the process of bringing employers’ potential liability for FRD to bear in the workplace and spurring necessary organizational change, including, in some cases, adopting policies that allow for greater workplace flexibility. (Examples of such policies are discussed in “Implications for Policy and Practice,” below.) Legal employers also stand poised to play a key role in documenting the link between the stigma associated with part-time work and discrimination against mothers. Through its work on work/life issues in the legal profession, the Project for Attorney Retention has learned of the link between the stigma triggered by requesting or going on an alternative work schedule and gender stereotyping. “Most of the gender stereotyping around here is associated with working part-time,” said an associate--a sentiment with which others agreed--at a gender bias training offered by PAR in San Francisco (Personal communication to Joan C. Williams, 2006). Finally, the challenges faced by change agents in the legal profession suggests that there is a need to analyze the relationship between organizational change and workplace structure when addressing work/family issues in any workplace. Spurring organizational change in law firms presents some unique challenges because of the structure of law firms. Traditionally law firms have not hired professional managers; instead, law firm partners take over as Managing Attorney for a given period of time. Sometimes these individuals are in fact interested in management issues; at other times, they are simply the attorneys who have the most power either because they are rainmakers or are well-liked. Also, law firms tend to lack the hierarchical structure and clear lines of authority that are typical in other business environments--in some ways, functioning more like an academic department than a top-down American corporation. Thus, even when law firm leadership wants to spur organizational change around work/life issues, the Managing Partner faces an internal structure that requires him or her to “herd cats,” stemming from a tradition that individual partnerships have substantial autonomy. This hurdle exacerbates the commonplace problem of supervisors who deny flexibility, which is acute even in organizations in which leadership at the top is sincerely committed to workplace change. A Managing Partner, unlike a CEO in a top-down corporate environment, rarely has the platform from which to announce that it is unacceptable for a partner to refuse to work with part-timers, or to honor their schedules. Law firms have traditionally not conducted leadership or other types of trainings that are commonplace in business. In the absence of such training, “old boy” networks and implicit bias can flourish without much accountability.
The first full book on work/life issues in the legal profession was Cynthia Fuchs Epstein and co-authors’ The Part-Time Paradox (1999), a study of part-time work among lawyers. They found that “the legal profession measures…excellence and commitment not only by productivity and competence but by the number of hours logged…that is part of the politics of time” (Epstein et al., 1999, p. 4). “Time becomes a proxy for dedication and excellence” (Ibid., p. 22). Myrna Blair-Loy’s study of the financial industry revealed a “norm of work devotion” that is also relevant to the legal profession: Lawyers are required to “demonstrate commitment by making work the central focus of their lives” and to “manifest singular ‘devotion to work,’ unencumbered with family responsibilities” (Blair-Loy & Wharton, 2004, p. 153). This way of defining the ideal worker helps explain the stigma triggered by part-time work. “[Lawyers who work part-time] are challenging [a] key part of the profession’s traditional culture. They have become ‘time deviants’ who are flouting the time norms of professional life” (Epstein et al., 1999, p. 4). In the article Rat Race Redux (Landers, Rebitzer & Taylor, 1996), the authors point out that both the partnership structure of law firms, combined with the difficulty of measuring quality and productivity, fuels the tendency of law firms’ to use long hours as a proxy for commitment. More recent contributions include Holly English’s Gender on Trial: Sexual Stereotypes and Work/Life Balance in the Legal Workplace (2003). Among the many law review articles that discuss work/life issues among lawyers, Keith Cunningham-Parmeter’s 2001 Stanford Law Review article “Father Time: Flexible Work Arrangements and the Law Firm’s Failure of the Family” (originally written as a paper in Deborah Rhode’s seminar) stands out, with its excellent discussion of work/life issues as they related to fathers. Additionally, two major law reviews published symposia on work/life issues and the legal profession, New York Law School Law Review in 1990, and Fordham Law Review in 1995 and 2002. Several reports have documented the time pressures faced by lawyers, and the stigma associated with part-time programs. Such reports include the Project for Attorney Retention’s Balanced Hours: Effective Part-Time Policies for Washington Law Firms (Williams & Calvert, 2001), the American Bar Association’s Balanced Lives: Changing the Culture of Legal Practice (Rhode, 2001) (written by Professor Deborah Rhode, with Joan C. Williams contributing as a consultant), Catalyst’s Women in Law: Making the Case (2001) (a study of women graduates of five elite law schools), and the Project for Attorney Retention’s Better on Balance?: The Corporate Counsel WorkLife Report (2003) (the only full-length study of work/life issues for in-house attorneys). Other influential studies include several publications by the NALP Foundation, including the 2003 Keeping the Keepers II: Mobility & Management of Associates, and two 2005 reports: In Pursuit of Attorney Work-Life Balance: Best Practices in Management (by Susan Saab Fortney) and Toward Effective Management of Associate Mobility: A Status Report on Attrition (by Cynthia L. Spanhel & Paula Patton). Various state bar associations have also authored studies on these issues, for example two studies written by women lawyers in Boston--Facing the Grail: Confronting the Cost of Work-Family Imbalance (Boston Bar Association Task Force on Professional Challenges and Family Needs, 1999) and More than Part-Time: The Effect of Reduced-Hours Arrangements on the Retention, Recruitment, and Success of Women Attorneys in Law Firms (Women's Bar Association of Massachusetts Employment Issues Committee, 2000). More recently, the Boston Bar Association Task Force on Professional Fulfillment released a report, Expectations, Reality, and Recommendations for Change (2007) that addressed the conflict between billable hour requirements and family responsibilities and the need for part-time positions that do not take associates off the partnership track. Lastly, the book Solving the Part-Time Puzzle: The Law Firm’s Guide to Balanced Hours (Williams and Calvert, 2004), published by the NALP Foundation, outlines a step-by-step process of organizational change designed to move law firms from old-fashioned, stigmatized part-time policies to truly usable balanced hours programs. Implications for Policy & Practice
In addition, as previously stated, the vast majority of law firms now have part-time policies on paper (NALP, 2006). Yet the key challenge that remains for all legal employers, especially contemporary law firms, is to move from part-time policies on paper that are rarely used, to truly usable “balanced hours” programs. As in other fields, those who use family-friendly policies tend to suffer career detriments (Glass, 2004). The Project for Attorney Retention has identified two major flaws in most existing part-time programs: stigma and “schedule creep” (when a part-time lawyer’s hours creep back towards full-time, resulting in close to full-time hours for part-time pay). The stigma that part-time lawyers encounter is often severe. A 2005 NALP study found that 43.8% of law firm managing attorneys reported non-use of work/life initiatives such as part-time arrangements was due to the “perception that utilization would adversely affect their professional advancement” (Fortney, 2005). In some legal job markets, part-time lawyers are still formally barred from partnership track. Even in markets in which formal prohibitions are rare today, such as Washington, D.C., part-time partners are a relatively new phenomenon. Other signs of stigma include part-time lawyers being assigned to a steady diet of “dog” cases, being shifted to interior offices, and being taken off firm committees (Project for Attorney Retention, 2003). One law firm consultant reported to PAR an instance in which a practice group forgot to invite a senior woman associate who worked part-time to its retreat, although men considerably junior to her had been invited. One Massachusetts lawyer put it succinctly: going part-time was “career suicide” at her firm (Women’s Bar Association of Massachusetts, 2000). Establishing policies for non-stigmatized reduced hours work is important not only for parents of young children, but also for attorneys at the end of their careers who are beginning to transition to retirement. Given the demographic realities of the workforce, as more and more baby boomers transition to retirement, legal employers will likely face an increased desire among older employees for part-time and flexible schedules. For example, the American Bar Association recently created a Second Season of Service Commission to address the issues faced by attorneys who wish to continue practicing in some capacity while transitioning to retirement (American Bar Association, 2007). Some organizations are creating tools for legal employers to use to help improve their employees’ work/life balance and stem attrition. For example, the Project for Attorney Retention has developed a Model Balanced Hours Policy that includes creating a Balanced Hours Coordinator--ideally a partner who has worked part-time--who can monitor schedule creep and consult with the supervisors of any part-time attorney who consistently works more hours than was promised (Williams & Calvert, 2001, App. B). The Model Policy also targets stigma through a variety of measures, notably holding practice group leaders (department heads) accountable for “regretted losses”--employees the firm wishes had not left the firm (Ibid.) These and other elements of PAR’s Model Policy have been adopted by a number of law firms. Other strategies PAR and similar organizations have used to affect change at private law firms is to make a convincing economic argument for why effective, non-stigmatized work/life policies make good business sense--for example, developing compelling statistics, like that the loss of a single associate costs a firm between $200,000 and $500,000 (Project for Attorney Retention, n.d.) Like many professional workers in the United States, attorneys are expected to work extremely long hours, devote themselves primarily to work, and be ever available for their employers and clients. The billable hour structure makes these expectations even more extreme for attorneys who work at private law firms. Certain Bar associations, organizations, and individual scholars have helped bring significant attention to work/life conflict in the legal profession, particularly at private law firms. Such efforts have resulted in suggestions and even models for how legal employers can affect change in their own workplace. To date, while the vast majority of law firms have part-time and other work/family related policies on paper, few have yet made the effort to reduce the common problems of stigma and “schedule creep” associated with attorneys who actually utilize such policies. To truly make headway in improving work/life balance in the legal profession, law firms and legal employers will need to acknowledge and address these realities. References American Bar Association (2007, Aug. 9). Back v. Bailyn, L., Drago, R., & Kochan, T. (2001). Integrating work and family life: A holistic approach. Biernat, M., Blair-Loy, M., & Wharton, A. (2004). Mothers in finance: Surviving and thriving. The Annals of the Catalyst. (2001). Women in law: Making the case. Chanen, J.S. (2006, March 17). Discontented in the law: Supervised lawyers report struggle to balance work and family, survey shows. Correll, S.J., Benard, S., & Paik, Cunningham, K. (2001). Father time: Flexible work arrangements and the law firm's failure of the family. Stanford Law Review, 53, 967-1008. Day, J. (2006, February). Work/life balance survey: Lawyers seeking the magic blend for fulfillment. English, H. (2003). Gender on trial: Sexual stereotypes and work/life balance in the legal workplace. Epstein, C.F. (1995). Glass ceilings and open doors: Women’s advancement in the legal profession. Fordham Law Review, 64, 291-378. Epstein, C.F. (1981). Women in law. Epstein, C.F., Seron, C., Oglensky, B., & Saute, R. (1999). The part-time paradox: Time norms, professional lives, family, and gender. Fordham Law Review. (2002). Lecture (includes D.L. Rhode, Balanced lives for lawyers; J.C. Williams, Canaries in the mine: Work/family conflict and the law) [Special section]. Fordham Law Review, 70(6), 2207-2255. Fordham Law Review. (1995). Report: Glass ceilings and open doors: Women’s advancement in the legal profession [Special section]. Fordham Law Review, 64(2), 241-449. Frater, E. (2004, July/August). Pathways to partnership: A closer look into majority and minority firms. Diversity & the Bar. Fortney, S. (2005). In pursuit of attorney work-life balance: Best practices in management. The NALP Foundation. Glass, J. (2004). Blessing or curse? Work-family policies and mother’s wage growth over time. Work and Occupations, 31, 367-406. Harrington, M. & Hsi, H. (2007, Spring). Women leaders and obstacles to leadership. Harrington, M. (1993). Women lawyers: Rewriting the rules. International Labour Organization. (2003, September 1). New ILO study highlights labour trends worldwide: Jacobs, J. & Gerson, K. (2004). The time divide: Work, family, and gender inequality. Landers, R., Rebitzer, J.B., & Minnesota State Bar Association, Task Force on Diversity in the Profession. (2006, August 30). 2005 Self-audit for gender and minority equity: A research study of National Association for Law Placement (NALP) (n.d.). Trends in graduate employment - 1985-2004. Retrieved Oct. 1, 2007, from http://www.nalp.org/content/index.php?pid=274. National Association for Law Placement (NALP) (2006, Dec. 7). Few lawyers work part-time, Most who do are women. Retrieved Oct. 1, 2007, from http://www.nalp.org/press/details.php?id=65. National Association for Law Placement (NALP) (2003). Keeping the keepers II: Mobility and management of associates. NALP Foundation. O’Brien, T. (2006, March 19). Why do so few women reach the top of big law firms? The New York Times. Retrieved Oct. 1, 2007, from http://www.nytimes.com/ Personal communication to Phillips, M. (2006). Survey of policies and practices affecting women lawyers in Project for Attorney Retention (n.d.). The business case for a balanced hours program for attorneys. Retrieved Oct. 1, 2007, from http://www.pardc.org/LawFirm/Business_Case.htm. Project for Attorney Retention (2003). Better on balance? The corporate counsel work/life report. PAR Corporate Counsel Project. Retrieved Oct. 1, 2007, from http://www.pardc.org/Publications/BetterOnBalance.pdf. Rapoport, R., Bailyn, L., Fletcher, J.K., & Pruitt, P.H. (2002). Beyond work-family balance: Advancing gender equity and workplace performance. Rhode, D.L. (2002). Balanced lives for the lawyers. Fordham Law Review, 70(6), 2207-2220. Rhode, D.L. (2001). Balanced lives: Changing the culture of legal practice. Rhode, D.L. (2001). In the interests of justice: Reforming the legal profession. New Rikleen, L.S. (2006). Ending the gauntlet: Removing barriers to women’s success in the law. Thomson Legalworks. Sarkisian, N. (2007, January). Who says being a lawyer has to suck? San Francisco Magazine. Retrieved Oct. 1, 2007, from http://sanfranciscomagazine.com/home/view_story/1517/. Schiltz, P.J. (1999). On being a happy, healthy and ethical member of an unhappy, unhealthy and unethical profession. Vanderbilt Law Review, 52(4), 871-951. Spanhel, C. & Patton, P. (2005). Toward effective management of associate mobility: A status report on attrition. NALP Foundation. Still, M.C. (2006, July 6). Litigating the maternal wall: Williams, J.C. (2007, January 19). Potential liability associated with “family responsibilities discrimination” claims. Presentation at the Hildebrandt Institute, Law Firm General Counsels Roundtable, Williams, J.C., Bornstein, S., Re Williams, J.C. & Calvert, C.T. (2004). Solving the part-time puzzle: The law firm’s guide to balanced hours. Williams, J. & Calvert, C.T. (2001). Balanced hours: Effective part-time policies for Women's Bar Association of Locations in the Matrix of Information Domains of the Work-Family Area of Studies The Editorial Board of the Teaching Resources section of the Sloan Work and Family Research Network has prepared a Matrix as a way to locate important work-family topics in the broad area of work-family studies. (More about the Matrix…)
Note: The domain areas most closely related to the entry’s topic are presented in full color. Other domains, represented in gray, are provided for context.
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