Billable Hour Harms Female Lawyers

While the practice of billing by the hour has been long debated in the legal world, a group of lawyers has recently called for an end to the “billable hour” for a new reason—because the practice disproportionately harms female lawyers. Women, they say, become “discouraged” by the fact that they simply cannot work the long hours required by many firms due to their responsibilities to their families at home. The end result, these lawyers say, is that women often choose not to pursue careers at big law firms or choose to leave the profession altogether. Of course, the lawyers raising the issue argue that a change in legal billing practice would benefit everyone, as all could benefit from working fewer hours. But one commenter says that while the change “is a good idea in theory … it’s going to be hard to do,” a rather unconvincing argument, especially for feminists: since when has it been easy to make any sort of major change?

The referenced article follows:

All in Favor of Axing the Billable Hour …

Zusha Elinson for The Recorder:

A group of Heller Ehrman lawyers is making bold recommendations — including doing away with the billable hour — to keep women from leaving their law firm careers.

Countering what has become known as the “opt-out revolution,” in which women ditch corporate America mid-career to be homemakers, the attorneys created what they call the opt-in project.

“We wanted to shift the discussion in this country from why women opt out to why women should opt in,” said Patricia Gillette, a longtime Heller partner who spearheaded the project. She delivered her remarks Thursday evening to a packed ballroom at the Palace Hotel in San Francisco, where the group presented its findings.

Studying how other professions have tackled the issue, the group laid out steps to eliminate obstacles — like the inflexibility of the hours-heavy grind and the low percentage of female leaders — that it says discourage women as well as an entire younger generation of lawyers from making a career at a big law firm. Perhaps the most radical suggestion made by the opt-in project is to get rid of the billable hour. Lawyers should be measured by their productivity and efficiency instead, the group said.

“It’s a huge issue for woman and that’s because we still live in a world where woman still have more responsibility for raising children,” said Gillette. “It may cut into the hours you can bill, and yet it may not cut into your productivity.”

Although many say the billable hour harms both lawyer and client alike, few believe that the deeply ingrained currency of lawyer value is going away anytime soon.

“I think it’s a very good idea in theory,” said Ronald Beard, a law firm consultant with the Zeughauser Group. “The question is how — I think it’s going to be hard to do.”

Although Heller Ehrman sponsored the opt-in project, the firm hasn’t adopted the recommendations.

“This is not directed at Heller, this is directed at all law firms,” said Gillette.

Some audience members were a little disappointed that Heller wasn’t taking the step to actually adopt the policies, saying that if the firm did, it would be a big draw for them to join the firm.

“We all tend to do the same kind of work,” said one third-year litigator at a major firm who chose not to be identified. “Why wouldn’t you walk across the street if you knew you had a better shot at success?”

In striking contrast to the implicit bargain of the latest associate salary war (more money and more hours), the group is also calling for less money and less hours to stem attrition in the associate ranks. The group’s report cites one survey that found a 57 percent attrition rate for associates before their fifth year and another that found female associates were more likely to leave private practice than male associates.

Solutions could include letting young lawyers have more control over how much they work and how much they get paid — not unwelcome changes, said associates in attendance.

“As much as we make a stink when one firm or another raises, it’s really about relative worth,” said the third-year associate. “I would absolutely work less for less money and I can’t think of many people who wouldn’t.”

The group points toward an innovative program at accounting giant Deloitte called Mass Career Customization, which allows its employees to adjust the pace of their career to deal with personal obligations without throwing them off the upward track.

Law firms could do the same, they say, by doing away with the lockstep system on which associates are placed. Instead of basing salary and promotion on years out of law school, the group suggests a four-tiered approach where lawyers would advance based on their skills rather than their seniority, allowing people to advance at a pace that fits their lives.

The group also said the workday can be more flexible with the use of BlackBerrys and technology that rolls calls over from office phones to cell phones. But the group wants to protect personal time, too. They pointed to an accounting firm that puts a message on e-mails coming into and leaving the office after 7 p.m. on Fridays: “Are you sure you want to send this message or can it wait till Monday morning?”

While some law firms already have some of the recommended policies in place — many, for instance, have part-time policies and also allow attorneys to work from home — Gillette said she doesn’t expect firms to move quickly to adopt all or even a few of the recommendations. “What we’re really trying to do is to get people to start thinking differently,” she said.