I am totally exhausted after a day involving a chambers application, client meetings, attempting to settle a high conflict matter likely headed to litigation despite all efforts and then coming home to two children under four with a husband out of town. And, Monday is my day to post on Slaw …
Which leads to me to a little rumination on the ethereal promise of work life balance in the context of private practice law. I am with Jordan Furlong, whom I met coincidentally for the first time in person at a CBA Work Life Balance function, that we are in a post work life balance era. Any private practice lawyer with a full practice knows the all consuming nature of the job – juggling multiple client matters, advocating for people at often the worst times of their lives, working to fix or prevent very serious problems, keeping up to date with ever evolving law and practice, marketing, managing staff, managing finances etc. Many lawyers also have a deep commitment to public service and donate many hours to pro bono matters, serving on boards, mentoring young lawyers and volunteering in their communities.
The ability to "balance" those professional demands with health goals and family time is an ever present balancing act of compromise and second guessing. Which leads me to acknowledging the elephant in the room that often the work life balance issues come up in the context of working mothers. It's not a coincidence that only 29% of lawyers in full-time private practice in BC are women. I can personally attest that there is nothing more sobering than playing with your toddler on a sandy beach on a sunny Sunday morning, and he picks up the pail like a briefcase, walks the other way and says "Mummy goes to work."
Nicole Howell of Hamilton Howell said it very well at the recent "great debate" CBA event on work life balance: it's all about choices. Law is a consuming profession and income is often directly linked to hours put in. Individual lawyers have their own sense of what is important to them, and they have professional choices to make as a result. They can choose to work at larger, traditional firms which have a business model that requires a certain amount of billable fees earned each year per lawyer to remain profitable. Lawyers can choose to work at smaller or more innovative firms which may have lesser or more flexible requirements. The extra or flex time could be used for parenting, to do a PhD or to travel the world. Lawyers can choose in house positions, government or to leave practice entirely. There will be financial consequences to these decisions, for better or worse.
Concurrent with this debate, business pressures on the traditional law firm model are increasing. Younger (often Gen Y) associates, both male and female, are increasingly less interested in committing to significant hourly targets. Clients are increasingly pushing back on paying high hourly rates to subsidize expensive real estate and training for junior associates. Innovative firms are using strategies such as virtual offices, value pricing, document automation and online legal services to erode the traditional law firm client base.
I suspect the "work life balance" debate in law will eventually subside as more law firms are forced to innovate to stay competitive and profitable. More flexible arrangements will be offered to retain scarce and valuable talent. Instead of the lawyers advocating for it, law firm employers will be leading the charge to attract and retain their most valuable asset: their people. Like today, it will be up to individual lawyers themselves to decide what balance means to them and then make it happen. They will just have more choices available to them.
Thanks for the shout-out, Nicole! You raise an important point: as long as a law firm sells its lawyers' time, it will resist any attempts to reduce its inventory, i.e., the number of hours available to sell to clients. In a variable-fee law firm, time really is money, so the less time a lawyer makes available, the less valuable that lawyer becomes to the firm. The problem, of course, is that trading time straight-up for money is a terrible swap — they're unequal currencies.
Among the ramifications of this approach is one that was identified at the Great Debate: lawyers who reject the time-selling model will continue to reject those firms that employ it, and the long-term talent drain from these firms will continue. It hasn't occurred to most firms yet that billing by the hour alienates them from a growing percentage of valuable legal talent — or if it has occurred to them, they don't care. Whether arising from cluelessness or complacence, that particular error is becoming more expensive every year.
When I was in law school in the early eighties, it was often said by profs and students that law would turn into a women's profession, because women were garnering the scholarships and were "better at it." Many of us imagined firms that would be family-friendly, with on-site daycare and flexible schedules.
Ten years later, it was becoming clear that many women lawyers were choosing 9-5 work or opting out of practice altogether. Law was not on its way to becoming a women's profession, after all.
Like many lawyers who are also wives and mothers, I learned a painful lesson in the hardest possible way: the sky-high stress of practice, even part-time, is not healthy for young families. The problem is not so much that women lawyers don't get enough help with housework and parenting–that can generally be afforded. The problem is that even when mother/lawyers are home, they're in recovery mode at best. Stress is also inherent in the requirement for a daily decision on where to put one's valuable time.
It was often said that time is all lawyers have to sell. That's the basis of charging by the hour. However, when you think about it, time is all anyone has to sell. We unfortunately live in a society where little or no economic value is ascribed to hours spent on mothering or family life or personal aspirations–we are required to pay for those hours rather than get paid for them.
Yes, law is losing valuable practitioners, many of them women, because of the idiotically high stress of the hourly-billing system, piled on top of the inherent stresses in such high-calibre work. If there is a solution one day, it will come from outside the profession. When society finds a way to make it financially feasible to have a family or personal life without killing yourself on the job, we'll see more women lawyers having a long career. We'll also see an increase in the numbers of that rare beast, the happy lawyer.
Having lived this debate for years as managing partner of a mid-size firm and now as part of a small firm I think I have a new perspective on the "debate". What is missing is that practitioners in both are to some extent managing their own small businesses; decidedly true at a small firm but in my view also true to those with insight at a bigger firm. Truly successful owners of small businesses tend not to engage in the debate. You do what you have to do to be successful and you balance what you have to balance or accept that certain things will fall through the cracks and have consequences. It is a matter of choices and priorities and will always be thus. I bemoan the lack of personal responsibility and accountability. I am the first to recognize that Big Law and the profession in general suffer from tremendous inertia and will be driven kicking and screaming to new ideas however I am also troubled by an attitude that success comes without cost. By all means let's make room for people who make different choices but those people have to recognize that those choices have consequences. If the "debate" is to accommodate and the changes are necessary to do so, that is one thing; but if what is being said is that people who make different choices will be "equal" in all respects that is nonsensical.
I had thought that the complexity of the debate was not simply to have lawyers recognize, as Gary L says, that choices have consequences – that's not hard to understand. If I work less and thus earn less so I can do something else with the extra time, who cares? There are real jobs out there for me.
The bigger challenge is that the choices often involve whether to have children and how the children are raised: choices that have social consequences, not just personal consequences for the parents. That's what Eva v L seems to me to be getting at: must the full cost of providing good parenting be borne by the parents, and usually more by the mothers? How do you organize society or the economy, or for the purposes of this discussion the practice of law, to recognize the social value of that particular work/life balance?
OTOH should you really take less pay so I can have kids? That's a possible implication of that line of thinking, but one understands why it has not caught on everywhere…