The story that stayed with me most from my colleague Noam Scheiber’s superb cover story on the impending demise of Big Law As We Know It was that of the Mayer Brown associate who, despite apparently being capable enough an attorney to survive nine years on the job—including two earlier rounds of layoffs—got pink-slipped after she had a child and went on maternity leave. “We would have these group meetings where we’d talk about billable hours, how down they were for our group,” she told Noam. “I knew that, if there was another layoff, we were going to be hit.”
In any competitive industry, taking maternity and paternity leave is liable to leave professionals at a disadvantage. But could the wrinkle of billable hours aggravate that disadvantage? At most Big Law firms, attorneys charge clients (and bring in revenue for their firms) at an hourly rate—it’s typically a few hundred dollars for associates, and can reach four figures for partners. Under such a system, how much you bring in is unusually open for all to see; how much you give up by taking time off is similarly transparent. And since, at the average Big Law firm, an associate receives only about one fourth of the revenue they bring in via billable hours (according to lawyer and author Stephen J. Harper), a firm can easily perceive—and calculate—just how much income it is losing while its employees and partners spend time with their newborns.
I spoke to two experts on work-life balance issues in the legal profession. Both strongly believed the legal profession has a long way to go in this arena even by the standards of cutthroat industries, though they disagreed about the role that the billable-hours system played in this.
“I think it exacerbates it, just because it points out the lower productivity of working mothers,” said Deborah L. Rhode, a law professor at Stanford who directs the Center on the Legal Profession there. She continued: “I remember one woman who reported to a gender bias commission the lower both volume and level of interesting work she received after coming back from maternity leave. And she said, ‘I had a baby, not a lobotomy!’”
When I told the story in Noam’s piece to Joan Williams, a professor at the University of California Hastings College of the Law in San Francisco, who is director of its Center for WorkLife Law, she noted that “it is clearly illegal to retaliate against someone for taking maternity leave” (to my knowledge, the woman does not suggest that is precisely what happened). But Williams argued that the billable-hours question was a red herring; according to her, women who return from maternity leave at those rare Big Law firms that do not have billable-hour structures report similar problems.
Nonetheless, she said, “We hear very, very persistent reports that women return from maternity leave and find it very difficult to get work, even if they return to work full-time. If they return on a reduced schedule, the problem is sometimes even worse.” She added, “A not-uncommon pattern is for a woman to return, find herself unable to get enough billable hours, and then end up being let go.”
“Some of this is benevolent—‘Oh, I don't want to overload her,’” Williams explained. “Some of it is less benevolent.”
Much of the problem, according to both, is that, in Williams’ words, “Law firms are still run through 18th-century business systems.” That is, frequently decisionmakers are appointed on the basis not of managerial talent or administrative appetite, but of skills as lawyers and rainmakers.
The antiquated way in which law firms run their businesses must appeal to some for its sheer charm and meritocratic sheen (at least, perhaps, until you start rewarding rainmakers). The law partner, Noam writes, channeling our idealized cultural imaginings, “could focus his energy on the legal pursuits that excited his analytical mind.” The law was the occupation of choice, the saying went, for the smart student who couldn’t stand the sight of blood. It must have made sense to such students to reward smarts and professionalism over something as bland and intellectually stilted as greatest managerial acumen. These are J.D.s, not M.B.A.s!
But, along with the litany of factors Noam cites, this lack of competent management is probably helping to doom Big Law. “I don’t think lawyers have done as good a job as accounting firms in crunching the numbers and figuring out how much it’s costing them not to have good work-family policies,” Rhode said. “80 percent of women are gonna be mothers,” she added, “and you’re excluding a large percentage of the talent pool if you don’t figure out a way to treat them equitably in the workplace.”
This is of course—as is so often the case in work-life discussions—not even to mention the men. “Law firms have been behind the curve of other occupational groups in providing equal parental leave for men,” argued Rhode. Williams related, “The first question I ask an employer now when they say, ‘We’re committed to work-life balance,’ is, ‘Do your men take paternity leave?’” And? “It’s getting standard at some firms,” she said. “But it’s still extremely rare.”
There is a potential happy, cathartic ending one can envision. Law firms’ naked self-interest should compel them to adopt more family-friendly policies, which would improve family opportunities for lawyers as well as increase firms’ potential talent pools, improving their businesses. To accomplish this, law firms may even implement 21st-century (or, to be less greedy, 20th-century) managerial practices, further improving their long-term viaiblity.
As for billable hours? If nothing else, they are a convenient way of stating the issue: An unusually explicit and concrete manifestation of the dilemma every professional faces. Time is money; time spent not working is money lost. In late capitalism, all hours are billable. Yet if talented professionals decided that a certain kind of time spent not working—when the baby is born, is playing Little League, or is in need of a parental visit at college—is, literally, invaluable, the rest of the world would have to accommodate them. And that would be good for everybody.