“The Elephant in the Room”: work practices of solicitors

By Legal Eagle

A friend has alerted me to the release of a report called ‘”The Elephant in the Room”: Working-Time Patterns of Solicitors in Private Practice in Melbourne’. Now that I’ve finished the drudgery of marking, I can give it the proper attention it deserves.

The title is a reference to a comment by Elizabeth Broderick, Sex Discrimination Commissioner, who said in relation to the under-representation of women in senior roles in law firms:

The elephant in the room is working hours. Everyone knows that long hours are one of the main reasons many, and not just women, leave law. Some will say that the extended hours are a direct result of client demands but they are also a result of unmanaged expectations and insufficient job redesign. Whilst there is no doubt that a number of the leading transactional roles cannot be performed in a flexible work arrangement, these roles are in the minority. (The Australian, 8 February 2008).

I am proud to say that one of my commentators also features in the introduction to the report: guera’s comment on my post “Like a wounded bull” at my old blog. There, you never knew your comments could be picked up and cited in academic reports, did you? So be daring, comment away on my posts, you may end up “famous”!

In one of my recent posts about my job situation, Conrad said:

Personally, if you are good at law, you’d be crazy to become an academic in Australia. (Not that I know anything about it, but I imagine most of the decent staff in law are leftovers that have simply been in the system too long to move out).

So: why did I give up a job as a solicitor which had greater job security and much better pay? The answer is that once I had a child, I was not prepared to work those hours any more. But I still loved the law, and wanted to find a role where I could use my expertise. I’m not alone, either, and it’s not just a “female” thing – a male friend quit being a solicitor shortly after his wife had their first child because he wasn’t seeing his newborn son at all.

It appears that I’m not just “imagining it” about those long hours either. The report cites data from the 2006 Census as follows:

Full-time work is dominant amongst solicitors, both for men and for the increasing number of women in the profession. Solicitors appear to stand out, even amongst professional and managerial groups, for the number of hours they work. According to data from the 2006 Census on actual weekly hours…, almost half (45.1 percent) of all solicitors reported working what can be classified as ‘very long’ actual weekly hours of 49 or more in the reference week. This proportion was much higher than for all other occupations (17.7 percent). It was also higher than for other professional groups…, both those with a substantial female minority such as accountants (24 percent), university lecturers and tutors (26.1 percent) and generalist medical practitioners (35.4 percent), as well as those that remain heavily male-dominated such as architects and landscape architects (25.7 percent) and civil engineering professionals (28.9 percent). Even within the Australian context, where the proportion of workers engaged in ‘long’ or ‘very long’ hours is high…, the situation of solicitors seems unusual. (page 9)

The report noted that part-time jobs are rarely available in legal practice, and usually only if one starts off as a full-time practitioner in the first place. Such jobs typically range from three to four days back at work, but the actual days one does work remain very long. And part-time jobs are typically of inferior quality and less interesting, often resulting in a perception that one has “stepped off the career path”. I was horrified to hear that one intelligent colleague of mine had been shuffled off into a part-time position as a “precedents lawyer” after the birth of her first child, despite the fact that this was not her area of expertise.

Apparently there is a “churn” rate of about 20 – 40% of employees per annum in most law firms, which is equivalent to a complete renewal of a firm’s workforce every five years or so. Certainly, I know very few junior solicitors in the firm with which I worked when I was pregnant with my daughter (3 years ago). The churn rate has been crazy.

The report continues:

The exit from private practice is by no means confined to women, but it seems to affect women disproportionately, and it is often linked to the desire to have children and to spend time with the children. When women leave private practice, they may drop out of employment altogether, take up ‘non-legal’ employment, move to academia or move to legal work with corporations or in the public sector. (page 20)

Yes, that’s me.

Why do law firms have these crazy, crazy hours? According to this report, it is linked to the billable unit. Which is what I have always suspected, but these guys have backed me up with empirical research, and with a greater depth of analysis.

Prima facie, the six minute billable unit provides a method for billing clients. Even then, it presents problems (people tend to get resentful when they realise they are being charged for that five minute phone call to check on the progress of their file – or even for saying thanks, as in the recent case involving Sydney law firm Keddies).

But the thesis of this report is that the six minute billing unit has become far more than just a method of billing clients:

[B]illable hours have come to be used for the purpose of personnel management – as a tool to measure and then to control the performance of employee solicitors. The emergence of this use came relatively quickly. … The decisive change was linked to a recognition that billable hours offered both a direct measure of the solicitor’s contribution to income (and profit) and a powerful lever to secure and expand that contribution. Managers, spurred on by a business imperative, moved to introduce ‘targets’ or ‘goals’ or ‘benchmarks’ (in fact often quotas) for the number of billable hours that needed to be acheived by each solicitor over a specified period of time, such as the day/week/year. Such ‘targets’ are now a crucial feature of the organization of work in most law firms, and the vast majority of employee solicitors in such firms are working within the framework of targets for ‘billables’. Within this framework, the employer (or the supervising partner) distributes cases/tasks and then reviews the time sheet of individual solicitors in order to assess whether they have accomplished the tasks, at what speed per task, and with what outcome for billing.

Billable hours are tied to how well a person does within a particular firm. Usually, there is a minimum number of billable hours which need to be fulfilled each day (typically 5 – 7.5 hours). The actual working day, however, is much longer because of the necessity to do other things (eat, go to the toilet, attend work-related social engagements, professional development etc).

As the report says, billable hours are not without criticism. Others have agreed with my own assessment that it encourages quantity, not quality, and rewards inefficiency. It has also been said to discourage community service, to diminish collegiality, and to encourage ‘questionable billing practices’.

Even despite this criticism, there has been very little movement to replace billable hours for the important reason raised by the report. Billable hours provide a useful ‘lever’ for firms to ensure their employees are always productive and their businesses are always profitable. It is not just a method of charging clients, but a management tool which structures the entire way in which firms run. I would wholeheartedly agree with this analysis.

The conclusion of the report is grim, and convinces me yet again that I’ll still take the uncertainty of academic life over the certain grind of private practice. It concludes that there is very little likelihood of change while the billing system is also incorporated into a business model which generates profit. The billing system operates to discriminate against women with small children in particular, and it is for this reason that women are so underrepresented in senior ranks of firms, despite the fact that the numbers of males and females start out roughly equal. But it also discriminates against any person (male or female) who wants to spend time with his or her family or wants to take on more of a caring role.

I do hope that something will change, but I won’t hold my breath. I think at the moment the billable hours system is too well entrenched, and unless something radical happens to derail it (eg, clients start protesting), it’s difficult to dislodge.

22 Comments

  1. Posted July 6, 2008 at 10:23 pm | Permalink

    Hooo boy! The lawyer’s standby – billables. I only spent a year in a firm, and they’d tweaked the billables regime in such a way that I thought solved the worst of this problem. I was only there for a year, mind, so maybe this has hidden nasties that I never noticed.

    Basically (and some of our lawyer readers will identify the firm in question when I describe this, so please keep your knowledge to yourself), they billed in one minute lots. Not six minutes. If you worked on a matter for 10 minutes, that turned into 0.17 of an hour. There was a nifty little laminated card that came in your employee pack when you first started, and the whole process became second nature in days. So you did a job that took 45 minutes? Well, you billed for 45 minutes. I’m not sure how, but it seemed to produce time honesty. It meant I filled out a timesheet in pencil as I did each job, then transferred the information into the firm’s electronic records last thing I did each day.

    It was still ‘billable hours’, and so was presumably vulnerable to abuse in the various ways people have enumerated, but it also had the merit of clarity.

    On the motherhood issue, this came up last night when a friend and I went out for supper. It’s fairly well known around Oxford that women climb the academic/promotions tree as rapidly as men… as long as they don’t have children. Last night’s co-diner is a scientist, and now at the age where family becomes a possibility. As is often the case, she’s late 20s and just starting to do some really amazing research, but had also thought about having children. And has definitively decided against it, because it would inhibit her research.

    She simply can’t see how it’s possible to do both. I’m not a big fan of kids, so it never really worried me… but what if you’re an ace female scholar and really want kids? She also made the point that it wasn’t just the time/health issues, but that she feared the loss of mental sharpness that apparently often goes with pregnancy.

  2. DeusExMacintosh
    Posted July 7, 2008 at 5:02 am | Permalink

    Long hours and lack of meaningful part-time work also explains the shortage of people with disabilities in the profession of law. It would be nice if professionals didn’t make the assumption that the physical inability to work full time hours (or more) isn’t the same as lacking the intellectual ability to do good work in the field.

  3. conrad
    Posted July 7, 2008 at 7:11 am | Permalink

    The obvious reason at least early career people in law have to work so hard and always will is that there is a massive over-supply of them (hence the relatively poor starting salaries). I believe there are more people enrolled in law at universities than there are lawyers. It beats me why so many people want to do it — I think TV self markets law as the fun job it generally isn’t. I’m sure if you quizzed first years, most would expect to be working in high-end criminal law, and not the thousand other areas they haven’t thought of.

    Speaking of long hours, I might point out that most successful academics work long hours also. In Australia, you also end up teaching night classes, and the situation is only going to get worse, especially if 3 semesters become the norm (perhaps not in law if they allow full fees to be collected). The only way to get out of it is to get grants to buy you out — but you a need a good record to get those — so if you think finishing your PhD is the end goal, you should really consider it just the start of your problems (sorry to be depressing).

    Also I’m not sure that you can’t do decent science (or law) and be an academic at the same time (or any other job for that matter). It just depends what you are willing to sacrifice in life (holidays, weekends etc. ).

  4. Sinclair Davidson
    Posted July 7, 2008 at 7:11 am | Permalink

    I once suggested that universities formalise the professional v motherhood dilemma into employment oppourtunities. This could be done by establishing an employment contract whereby professional women who had decided to have children could work at a university (in their area of expertise) for a x-year period teaching a reduced load with no research or admin responsibilities per se (i.e. they could do research etc. if they wanted to – as an aside admin work destroys most female academic careers). This could be combined with industry secondments (if the university and the employer entered into a contract to do so) for shorter or longer periods and so on. This would allow women to keep current in their area while having a family, earn some income, bring industry insight into universities and attract women to university teaching. Yet the reception got was lukewarm (at best).

  5. Posted July 7, 2008 at 1:00 pm | Permalink

    One of the main reasons that I didn’t become a lawyer was the 27 hour days. Unlike my father I think we work to live not the reverse. It’s the same however in advertising agencies. William Burroughs said something once about employers wanting more than your labour, they want your soul.

    I don’t work for advertising agencies either.

    I can only imagine that this situation will alter as firms realise they’ll have to be more flexible to keep women on. Unfortunately this is a multi-generational project and you lot are carving that path thru the forest. Good luck to ye.

  6. Posted July 7, 2008 at 1:02 pm | Permalink

    Yet the reception got was lukewarm (at best).

    Well you’re a fascist aren’t ya? 🙂

  7. Posted July 7, 2008 at 3:49 pm | Permalink

    Yep, I skimp on admin stuff – it gets left until last, or not done at all. It has ever been thus, and I’ve had people (always women, funnily enough) have a go at me about it. My response has always been something along the lines of ‘I don’t play well with others, and it’s no use me trying – I turn into an even bigger cow’.

  8. Posted July 7, 2008 at 11:33 pm | Permalink

    You do know that multiple choice discriminates against people with high IQs, don’t you? They see too many shades of gray. The solution (if you do have a high IQ) is not to study too much and then do the test very quickly. AND DON’T GO BACK AND ‘FIX’ ANYTHING.

  9. Posted July 8, 2008 at 12:50 pm | Permalink

    I decided a career at the Bar wasn’t for me about 4 weeks after having Bear. Don’t want my kids screwed up like several kids of barrys or wigs that I knew in law school.

    So it hits men as well. Public Surface isn’t a bad place for hours, the privates always look along their nose at you as if working a few more hours a week proves your intellect, however I’d rather be writing the law than merely advising some nong on how to get around it.

    PPS – I read a great academic article on billables once; they weren’t actually developed as a billing tool at all, they’ve always been about maximising work output and pitting lawyers against each other within the firm.

  10. conrad
    Posted July 8, 2008 at 8:08 pm | Permalink

    “I’m sure I heard one of my friends who was at a different university say that she had a multiple choice law exam once. What a ridiculous concept!”

    Here’s my bet. Most law faculties in Australia use multiple choice exams, so get used to it! No-one says they’re the best thing (far from it), but once you have huge numbers of students you end up using them because they’re quick to run and they differentiate between students well. In fact, you can get whole degrees and answer nothing more than multiple choice questions on exams these days (including the social sciences!). My suggestion is to ditch exams altogether once it has got this stage, but everyone expects to have to do exams, no matter how little they learn from them (students, accrediting organizations, most staff). Where I work, students complain if they have to do anything more than multiple choice on exams now, and because of this and teaching evaluations, written answers have pretty much gone they way of the dodo.

  11. Posted July 9, 2008 at 5:33 am | Permalink

    No-one’s told Oxford – they even expect essays from scientists. 3 or 3.5 hours, every paper anonymised and double marked, with borderline papers triple marked.

    This – not the lovely sandstone or ‘interesting’ dress or port after supper – is the real indicator of privilege.

  12. Posted July 9, 2008 at 8:40 am | Permalink

    I can’t sorry- it was actually back when I studied jurisprudence, so we’re talking late 90s!

    I think it might have been a harvard crit who wrote it…

  13. pedro
    Posted July 9, 2008 at 1:49 pm | Permalink

    A few years ago I tried to work out how to tap into all the solicitor/mothers I imagine are at home or back at work and wanting a flexible work enviornment. My idea was that you could make flexible hours work as long as you did not expect the lawyers to take on complicated files. I know a couple of mums who job-shared as senior associates in the Sydney office of a top tier firm and that seemed to work ok, but again I think there were limits on the files they could take on. Too hard to share a complicated file.

    A general manager at a big firm told me (as a timesheet recalcitrant) that the time recording was most important to understand costs. Which is crap because the measure is too crude.

  14. Jonathan N
    Posted July 9, 2008 at 10:09 pm | Permalink

    I find it interesting how people point to the oversupply of lawyers as a reason for bad hours. Surely it would make sense if there was a glut to reduce the amount of hours somebody works and pay everybody less? It’s interesting that an oversupply of workers can reduce their demand.

  15. Posted November 28, 2017 at 11:01 pm | Permalink

    Thanks for writing this amazing article for Conveyancers and solicitors.

2 Trackbacks

  1. […] been down on being a lawyer lately, particularly after job woes and writing that post on billable hours. However, tonight I was pleased to be a lawyer. Briefly, a friend called me in distress because of […]

  2. By Skepticlawyer » What’s wrong with me? on July 25, 2010 at 7:40 pm

    […] moved out of firms altogether. My own apocryphal observations are backed up by a 2008 study, which showed similar results. I’d love to do a long range study of people over 15 years or so, and work out how long they […]

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