Working Paper
From Here to Flexibility in Law Firms: Can It Be Done?"
Lauren Stiller Rikleen, Senior Partner, Bowditch & Dewey
#WPC0011
Spring 2003 Seminar Series
Working Paper edited by: Susan C. Cass
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Table of Contents
Introduction..............................................................................................1
Choosing Work-Family Balance..............................................................2
Creating a Task Force to Study Work-Family Issues...............................2
Changes in the Legal Profession...............................................................3
Vicious Circles..........................................................................................4
The Myth of Meritocracy..........................................................................6
Flexibility is Key.......................................................................................9
Culture of Awareness...............................................................................12
Implementation Plan
Discussant’s Comments............................................................................13
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© 2003. Lauren Stiller Rikleen. All rights reserved. This paper is for the reader’s personal use only. This paper may not be quoted, reproduced, distributed, transmitted or retransmitted, performed, displayed, downloaded, or adapted in any medium for any purpose, including without limitation, teaching purposes, without the Author’s express written permission. Permission requests should be directed to
Introduction
The MIT Workplace Center hosted a Seminar Series in the spring of 2003 on entitled From Here to Flexibility: The Challenges and Promise of Flexible Work Arrangements. Lauren Stiller Rikleen presented at a seminar in this series on March 20, 2003 and her presentation was entitled From Here to Flexibility in Law Firms: Can it Be Done? Mona Harrington, Program Director for the MIT Workplace Center was the discussant for the seminar. Susan Cass, the Center’s Program Manager, prepared this working paper from the transcript of the seminar.
Lauren Stiller Rikleen is a senior partner in the law firm of Bowditch & Dewey. Her areas of practice are environmental law, real estate and higher education and she holds a JD degree from Dustman College. Ms. Rikleen has had extensive practice in all aspects of environmental law with an emphasis on negotiation, enforcement, and compliance issues with respect to state and federal law. She has served as an enforcement attorney at the Massachusetts department of the attorney general and in the Environmental Protection Agency. She has published extensively and lectures frequently on environmental topics. Ms. Rikleen has played a leadership role within the legal community on work and family issues. As president of the Boston Bar Association she initiated a task force to examine work-life issues in a variety of law firms and that investigation resulted in a nationally known report called “Facing the Grail: Confronting the Cost of Work-Family Imbalance.” In addition, Ms. Rikleen co-founded the Boston Bar Association’s standing committee on work-life issues which she currently co-chairs.
Choosing Work-Family Balance
One of the opportunities of being president of the Boston Bar Association is that presidents are given great latitude to focus on issues of interest to them and I chose work-family balance as one of two major priorities of my bar presidency. This issue is one that has been on my mind for a long time. Part of it stems from the fact that I am a parent, I have a son about to be 16 and a daughter about to be 13. As any working parent knows, you are consumed by the fact that you are a parent, no matter where you are. I found it was easy to connect with other parents on the parenting topics I had been grappling with and frequently when I would meet a lawyer for the first time, we would connect so easily on the parenting level and on those topics. It was pretty clear that this is something very important to all working parents.
In my role as a senior partner in a law firm, I have the opportunity of participating in many partnership discussions about who should be elected to become a partner in the firm. I often hear the criteria of “total commitment” as something that matters in elevating an associate to a law firm partner. I worry about what “total commitment” means and how this criteria impacts how one can parent and lawyer at the same time.
Finally, I have had a general concern about my own generation and maybe the generation younger than mine about the attention we are paying to child-rearing issues and it can be a very difficult, sensitive issue to discuss, but sometimes I see my colleagues doing a better job of lawyering than parenting. I worry about what this means to their children. Being able to be a parent in the workplace is very important to the health of our children. One of the things that struck and terrified me as we were looking at this topic is how Americans used to hold up Japanese culture as the paradigm of the horrible workforce situation. We would look at how driven the Japanese were with horror, but now the United States has passed Japan to become the longest-working nation in the advanced industrial world.
Law firms provide a picture of total disaster of the over-worked American. What we have in law firms, essentially, is an increased demand for billing, billable hours, and decreasing partnership opportunities as the pie is growing smaller, particularly in this economy. This combination leads to high attrition, poor morale, and variety of other problems.
Creating a Task Force to Study Work-Family Issues
When I was president-elect I tried to get the leadership of the bar fully committed to the Task Force’s goals because I knew if we did our job right the report we produced would be a controversial. I did not want it to be something that the bar would feel uncomfortable with or want to back away from. Getting people on board took some doing as did building support for a real, whole-hearted commitment to this effort.
We gave a great deal of thought to how we would constitute this taskforce and we included a diverse group of senior and junior partners, associates, in house council and law school administrators to be sure that our membership represented our very broad constituency
After determining the membership of the task force, we thought about what our mission and goals should be. None of us had any illusions about what we could accomplish. We were not out to create dramatic, overnight change. What we were hoping was that we could bring greater attention to the issues of work and family and to help move these issues to the forefront of a law firm’s agenda. Prior to the task force, the issue of work family balance was never discussed. We thought that if we could accomplish getting the issue on the table, then that would be very significant.
We knew that the more the firms had to confront this issue, the more they would have to move towards putting into effect measures that would accomplish real change. In our early meetings, we reached out to others in the profession to seek their perspectives and get their input as to what the issues were and what they thought we ought to be trying to accomplish.
One thing that came out of this outreach process complicated our challenge in many ways: we found a significant discrepancy existed between what firm owners and managers saw as the truth in their firms and what associates in those same firms experienced as their reality. In the report we describe the discrepancy this way:
Most senior managers in law firms will acknowledge that the profession is troubled. But then they go on to state that their own firm is grappling well with these issues. This misperception is exacerbated by the fact that younger attorneys are reluctant to state vocally, within their own law firms, perceptions that they are willing to share with outsiders; that their firms are not addressing these issues in a meaningful way and that their firm’s inability to offer an acceptable balance between work demands and family needs leads them to question their own future, both at the firm and in the profession.
Changes in the Legal Profession
We begin our report by noting the dramatic changes our profession has experienced over the last generation. Historically, lawyers and their clients had a very long-term, committed relationship. Lawyers could send out a bill that said “for services rendered” and there would be a number after that and the client would pay that amount. That bill was generally based on a lawyer’s perception of what that work was worth. Even a generation ago time was not measured in terms of hours.
Today we see the billable hour as the driving force. Professional success in a law firm today depends on fees generated from hours worked, hours billed, and fees collected. Moreover, rising legal costs have resulted in far greater scrutiny of bills. Many clients now have strict requirements regarding explicit ways in which bills have to be provided and how lawyers account for their time. Certain institutional clients send fifteen page memos explaining what a bill should look like and how time should be recorded. And, rather than relying on relationships and loyalty, clients now shop their matters. They look at several different firms and try to get competitive prices, lower billable rates and it further de-personalizes the relationship between a lawyer and their client. Simply put, the economic relationship between the lawyer and client has been transformed in our profession.
I n addition, there are new benchmarks for measuring success: billable hours, fee realizing, and the firm’s market share in a particular practice area or geographical region. We have also seen a real impact from technology. We all remember what the promise of technology used to be. We were going to get more time freed up, we would become more efficient and do more in less time. In fact, that really has not happened in any profession. What technology has made possible is the 24/7 work week and it allows all of us to be accessible around the clock. Certainly this is not unique to the legal profession, but it is a huge problem within it.
Vicious Circles
As the task force looked at all these historical changes within the practice of law, we started to identify what we called a series of vicious circles where solving one difficulty led to a new problem which created new difficulties.
Foremost in the vicious cycle analysis is the drive for higher revenues. In most firms, the largest expense is associate salaries and benefits. A few years ago, as firms found themselves competing to attract highly qualified law school graduates, they offered entering associates increasingly higher salaries and promises of bonuses. This rise in salaries for the new lawyers then led to a ripple effect throughout the law firms. Senior associates looked at what new associates were making and they wanted to earn more money too and make higher bonuses. Then as associate salaries increased, partners wanted to earn more. Compensation expectations increased dramatically throughout law firms.
What was the cost? As the pressure for higher compensation increased there was, and is, greater pressure on everyone to work longer hours, for the rates to go up, and to take on even more work. As partners and associates continued working so much harder, they continued to seek higher compensation to make up for how hard they were working and the vicious circle continued.
One way lawyers increase compensation is by increasing their hourly rates, but as hourly rates go up, the pool of potential clients that can afford such rates declines. This then affects the type of work that is available to both associates and to partners. As clients are paying more per-hour, advances in technology allows law firms to offer and clients to demand a more sophisticated work-product. Lawyers are expected to consult more reference sources, revise more drafts and in general be more responsive to client demands at any time of the day. As client demands increase, lawyers work harder, and the vicious circle continues.
The task force saw additional pressure on associates from the growing trend of law firms placing limits on the number of partners that they would add each year. Associates respond to this increased competition by attempting to stand out in the race for the increasingly elusive goal of partnership. They compete primarily by exceeding the billable hour expectations. Stress levels increase and their morale plunges and another vicious circle continues.
With each of these circles work-family balance is at the center of the conflict, and it became clear to us that the economic model under which most law firms operate directly impacts the work-family balance issue.
Law firm economic models are different from most other business models in some key ways that contribute to the problem. In law firms, expenses are distributed on a per-capita basis, that is across all attorneys. Profits, however, are distributed according to who produces the revenue. This results in a compensation model that focuses primarily on revenue generation with expenses taking a back seat. For example, the need to hire additional associates is frequently due to the work demands of the firm’s largest rain-makers. But all partners share equally in the cost of these new employees. So there is little incentive for any one particular partner to reduce costs. This is changing to some extent now because of the worsening economy but it is still not expenses-driven as in other types of business models. Even to extent that firms are focusing more on expenses, they are not doing it other than on a firm-wide, per-capita basis, not with respect to any individual. So even though expense generation is not an important component in setting compensation, per-capita expenses are steadily climbing now because of the issues discussed above relative to associate compensation and also training and development. As per-capita expenses increase, there is greater pressure on hourly rates, and the number of hours that an attorney must work to be perceived as profitable. It always comes back to how many hours somebody can bill and collect in terms of fees.
In most firms junior associate salaries are so high they cannot work enough hours to pay their own salaries and overhead. This results in increased pressure on senior attorneys to be even more profitable. Even worse, growing attrition, which will be discussed in more detail later, is reducing the number of profitable mid-level and senior associates, exacerbating the financial burden at the partnership levels. As more mid-level associates leave, everyone else, including partners, has to work even harder.