Convictions : law firm

Family Friendly Legal Practice: Why Not.

Richard Ford — Wed, 09 Apr 2008 23:39:00 GMT

Phil—to echo Orin’s skepticism about part-time at law firms, I wonder whether flexibility isn’t actually part of the same phenomenon that also accounts for heavier and heavier workloads. While it’s true that firms are becoming more flexible in terms of part-time arrangements to accommodate working parents and flexible partnership tracks, isn’t a lot of this just a move toward an eat-what-you-kill system generally? The demise of lockstep for partnership, for instance, does mean people who take time off aren’t fired (so long as they are otherwise productive and valuable to the firm), but it also has meant longer probationary periods before partnership generally and the rise of a whole range of demi-partnership statuses (such as the somewhat puzzling status of “non-equity partner”—basically a glorified associate who gets to pay self-employment tax). Large firms now routinely fire or demote partners (technically vote them out of the partnership) who fail to perform to expectations; conversely, rainmakers demand salaries that rival those of investment bankers and necessitate higher billable-hours requirements across the board for associates and partners alike.

This has made things more equal in a sense because there’s less room for favoritism and gender bias in a world of ruthless competition and an unyielding focus on the bottom line—as any economist will tell you, highly competitive markets tend to punish irrational discrimination. But they reward rational discrimination. For women and men who want more time off, this means they can get whatever they can negotiate in a competitive market. Maybe this is better than a system where part-time is out of the question, but it’s not exactly “family friendly.” And even if you do take leave or swing a part-time schedule, the bottom line is still the bottom line: If you’re a partner, you can’t just take three months off and forget about your clients; if you’re an associate and you check out for three months, someone else is going to be doing all of what used to be your work (or at least all of your good work) when you get back, and you’ll have to scramble to make your billables. Obviously this all affects women disproportionately, but little of it is sex discrimination.

Official firm leave and part-time policies don’t mean much in this context—they set a tone, but in the end your schedule depends on your relationship to clients and partners. Suppose you go on paternity leave, and two weeks later a partner you enjoy working for asks if you can help out a little bit from home on an exciting new matter. “I just want to be sure you’re in the loop so when you get back from leave you can take the lead on this.” You could, of course, forbid this type of request and insist that parents take their leave. But is that really better for women? That partner is doing you a favor—she could have just gotten someone else who’s not on leave to take the case and they’d have the plum assignment. Ditto a long-hours assignment for someone supposedly working part time.

My wife for instance, who works for a large firm in San Francisco, was in the office a week after she gave birth to our daughter (and without an epidural, no less!). No one forced her to come in, and in fact, she was roundly chastised for it. A week later, a courier delivered five banker boxes of documents and a laptop to our home so she could keep up while out on “leave” (for the last two years she's also been "part time," which is roughly 40 hours a week, plus the inevitable weeks or months "from hell" when something explodes and she has to take care of it). Again, this was her decision—she’d have a job in three months even if she did no work on her leave. But there’s no way she can just come back to the same job she left while doing nothing—her clients and relationships require some ongoing maintenance, many of the relationships are personal and can’t be transferred back and forth, it takes time to get up to speed on a client’s portfolio, etc. If the firm had more people working on a given matter, one person could take up the slack for someone on leave without taking over entirely. But except for huge deals and make-or-break litigation, firms tend to staff leanly. Given the hourly rates big-firm attorneys charge, clients understandably demand it. And given the salaries attorneys earn, firms can’t afford to write off too much idle time.

So the bigger problem is, as Phil and Orin suggested, the general crazy upward spiral of salaries and hours. No one is really to blame for this—or everyone is. Maybe it’s a collective action problem—firms think they need to offer larger and larger salaries to get the best students out of law school; status-conscious law students think high salary is an indicator of prestige and pick firms accordingly, even though they’d prefer less pay and lower hours. If so, there should be solutions, such as the initiatives among law students to rate firms based on lifestyle and social responsibility in order to change what counts as high status. On the other hand, it could be that people like to complain about their hours, but in fact they prefer long hours and high salaries to the alternative (it might be a bit like airlines: Everyone gripes about the lousy amenities, delays, and tiny seats, but they choose almost exclusively based on price).

Maternal Profiling—Single Moms as a Suspect Class

Doug Kmiec — Tue, 08 Apr 2008 14:16:00 GMT

My thanks to Deborah Pearlstein for her thoughtful reply, which illustrates well the professional disregard for both women and family in academia as well as in the law firm and corporate contexts—though, by virtue of de facto independent contractor status of most professors, the groves of academe are sweet compared to the bitter hardships borne by single moms. I've been helping a single mom in my parish church for the last several weeks try to retrieve her car from an impound lot when the sheriff towed it (after her ex-husband turned her in for various alleged vehicle-code violations). Stepping into her well-worn shoes for even these brief moments has been unnerving, to say the least. To make an unbelievable story short, after several continuances (which took no account of her job or child-care responsibilities), the judge recognized the charges to be more spousal spite than legal breach, and dismissed. When single mom went to get her car, the city had (wrongfully) sold it, and so now we begin a civil action which will no doubt worsen the Bleak House nature of it all. In the meantime, she knows the car is out there somewhere, because, apparently, the city sold it to a scofflaw who is running up parking tickets under her registration.

This personal experience merged together this morning with Deborah's intervention of her own experience among the haughty con-law fraternity and another response to my earlier post, this one from a reader who forwarded an article on "maternal profiling" which suggests that in some places—Pennsylvania (which has a primary, last time I looked, later this month)—employers are not only turning a dismissive eye on the value of family like our professor "colleagues" and the law firms but actually and brazenly (and apparently lawfully) discriminating against single women with a family. According to the Pittsburgh Post-Gazette, Pennsylvania state law allows employers to inquire into one's maternal status and use that openly to make an adverse hiring decision.

The presidential candidates are crisscrossing the keystone kingdom, and while sometimes they are accused of floating at levels of generality that exceed my vagueness in the classroom, on this topic, they stand amidst tangible opportunities to bring worthwhile change to the lives of, apparently, one of Pennsylvania's most suspect classes (presently without the benefit of strict scrutiny, of course): single moms.

Not Just Women's Work

Doug Kmiec — Tue, 08 Apr 2008 11:05:00 GMT

A new study says women with children are less "productive" at work. Maybe it's time law firms and corporations -- and men -- restructure employment relationships to recognize that many women want to be both parent and professional, and the culture would be better off if we made that easier to do. ...(read more)

Law Firm Work and Family-Friendly Policies

Eric Posner — Tue, 01 Apr 2008 04:21:00 GMT

The study mentioned by Emily can be found here (though you might have to pay to see it). Several of its conclusions are puzzling.

1. "[C]hildless women may be more productive than women with children and their male colleagues (with or without children)." Childless women billed almost 1600 hours, while fathers billed 1541 hours, childless men billed 1491 hours, and mothers billed 1387 hours.

However, the data also show that childless women are less experienced, with an average of 7.13 years of legal experience, compared to 15.3 for fathers, 13.44 for childless men, and 11.06 for mothers. You should picture these firms as employing young childless women, and older men, and older women with children. Are the childless women billing more just because they are younger, that is, your average overworked associate competing for partnership? (In the regressions, the authors control for legal experience, but if mothers tend to be partners, childless women tend to be associates, and partners work less than associates, I don't think that their legal experience control will do the trick.)

2. "[F]amily-friendly benefits appear more advantageous to men than women, even though women with young children would likely gain more from them in balancing work and family." The three variables that measure family-friendly benefits do not actually refer to specific programs such as paid maternity leave; they refer to survey respondents' perceptions of family-friendliness (including such things as whether people at work frown on discussions about child care). The study finds that being in a family-friendly firm does not increase a woman's productivity, but reduces a man's productivity.

The first result is more surprising than the second. To see why, note that one of the measures of family-friendliness is "reasonable workload." It is straightforward that if you are in a firm with a "reasonable workload" you are going to bill fewer hours. The two variables—billable hours and reasonable workload—ought to measure the same thing. So why the different results for women? The only thing I can think of is that maybe women are given more tasks that are not billable, perhaps because they have less legal experience, and it is those tasks that they forgo if they have children while in a family-friendly firm. The authors note that billable hours account for only 2/3 of the time spent by the lawyers at work, so if non-billable hours decline, this will not show up in the regressions and yet may account for a great deal of the underling variation.

But the larger point is that we can't say whether these benefits are more "advantageous" to men or to women without knowing more about how employees are compensated. People don't care only about how many hours they work; they also care about pay. But pay is not in the data set. This leads to a third concern.

3. "[W]e found very little support for ... the costs of working in a family-friendly firm for women's productivity." Emily interprets this statement as follows. "The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypothesis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.)"

Assuming Emily's interpretation is correct (I'm not sure I understand the statement I quoted from the paper), the paper doesn't really provide much support for this idea, or have any normative implications, as far as I can tell. Some firms have family-friendly policies and other firms do not. Women work about the same amount in both firms. But it may be they are paid less in the family-friendly firms, which would suggest that they are being less productive (producing lower-quality work, or producing less work given a fixed investment of the firm's other resources). Or they could be equally productive but receiving some of their compensation in the form of flexibility rather than cash. We just don't know because the study doesn't include salary data or other information (such as the quality of the work) we would need to measure productivity. Also the omitted non-billable hours are troubling.

Law Firm Work: Less Is More

Emily Bazelon — Tue, 01 Apr 2008 01:43:00 GMT

When law firms institute family-friendly policies (flex hours, reasonable work loads), who benefits? That depends how you measure it. Mothers at these firms are neither more nor less productive than mothers at other firms, as measured by billable hours, according to a new study of 670 lawyers in Alberta, Canada, by sociologists Jean Wallace and Marisa Young. But fathers at family-friendly firms are less productive than fathers at old-style firms. At the same time, fathers with help at home, like stay-at-home wives and weekly cleaning services, increase their productivity at work, whereas women with stay-at-home husbands and cleaning aren't more productive.

What's going on here? Wallace and Young argue that fathers tend to consider breadwinning an all-important family contribution, so when they have more help at home, they respond by working harder. Also, men are far more likely to have a stay-at-home spouses than women are. Women, on the other hand, seem to sink more time into their kids, if they have it.

The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypotheis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.) The finding about the men working less, though, throws a wrench into the discussion, doesn't it? Mothers are soldiering on for the firm, in gratitude for the break from crazy expectations or for whatever reason. Men are not. The authors ask, "How are men using their free time as a result of working fewer hours?" and then cite other evidence that men may plow their time into more leisure activities. Is that perfectly understandable, or is it shirking? Who's modeling the good behavior here?Given how hard law-firm lawyers often work, are fewer billable hours, whatever the equities, a reason to celebrate? It's hard to tell, but the gender split is there to be mulled over.

Over at Legal Blog Watch, Carolyn Elefant argues that billable hours are a bad measure of productivity. That makes sense to me as a reason that this study may not translate to other professions in which parents can argue they work more efficiently, squeezing more work into less time. But it doesn't seem like a salient criticism of these findings, since hours are firms' explicit measure of productivity.

I posted a version of this earlier over at XX factor, and now I'm curious about the reception to these findings in this neck of the woods.

Read more about the billable hour and family-friendly practices on Convictions, and a discussion on the same topic at our women's blog, XX Factor.