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The great lie

Cover Story
|Written By Jennifer McPhee
The great lie

Law firms talk a good tale about helping associates find balance between their jobs and personal life. But don’t believe it. The cold, hard reality is that client demands trump balance and that’s why lawyers get paid so well.

Mary Scott (not her real name) spent almost five years grinding out long hours as a law firm associate in order to meet annual billing targets before she was lured away by the greener pastures of in-house life. In private practice, simple pleasures like exercising or taking all her vacation time were impossible because she was either afraid of falling behind or simply too exhausted. In her new position, she still works long hours, but her schedule is predictable. She arrives early so she can leave at a reasonable hour, and completely avoids weekend work.

“Personally, I felt I needed to go in-house to have better work-life balance,” she says. “You constantly hear of other firms through the grapevine where people work less, but you never find out which firms those are. I haven’t seen it yet, but I’m not discounting the possibility.”

The younger generation is markedly different from previous generations. A higher proportion of young lawyers simply refuse to completely sacrifice their personal lives for their firms. Over the long term, their agendas are more likely to include stable blood pressure and raising children without employing multiple nannies.

A three-part series by Catalyst Canada found that 62 per cent of women associates and 47 per cent of men associates plan to stay with their firms for five years or less, and that work-life balance is more important to most associates than money or advancement opportunities when choosing a new firm.

In fact, how associates rate their firms’ work-life cultures directly correlates to the number of years they are willing to stay. The turnover cost to firms is hard to ignore. According to the study, each associate who walks out the door costs an average of $315,000.

Changing demographics and the bustling Canadian economy has left law firms struggling to find the talent they need to serve clients — especially in the hottest practice areas in the most overheated markets. Calgary, in particular, is on an unprecedented economic high because of the oil and gas boom, and some law firms are desperate for top-notch associates.

 “It’s crazy,” says Alison Bennett, manager of ZSA Legal Recruitment in Alberta. “I’ve seen someone with excellent skills come into Calgary from Toronto and get off the plane and literally get back onto the plane with six job offers in hand.”

But at a time when younger generations are searching for work-life balance, targets remain the same at most firms and some law firms are driving associates harder than ever in order to meet the demand created by prosperous times. In Calgary and Toronto, average minimum billing rates at large firms hover around 1,800 hours. But, in Calgary at least, some stretched-thin lawyers at large firms are billing into the mid-2,000s.

“I know a few people hit 3,000 and some litigators are even in the low 2,000s, which as litigators is hard to do because there’s so much more slippage on a litigation file,” says Bennett.

Many burned-out juniors are moving to smaller firms, and an increasing number are flocking to in-house positions. Some lawyers find in-house work more satisfying because they can sit at the table with the operations or business development team and help make crucial decisions that benefit the company, instead of coming in to put the paperwork together at the tail end of a deal, says Susan Kennedy, managing consultant at ZSA in Toronto. But a large part of the attraction comes from having a chance to exercise their passion for law in a more sustainable environment.

“If an associate is sitting on Bay Street and they’re not happy with the hours, they’re not going to want to move to another firm,” she says. “They’re going to hold out for an in-house position. So you have a large number of associates moving in-house, which is creating shortages as well.”

This contradiction creates a perplexing problem for law firms. Lower annual billing targets would result in a dollar-for-dollar reduction in the bottom line, but perhaps more importantly, in order to survive in a competitive marketplace, firms with time-sensitive practice areas vying for the same big clients must respond to clients who expect to have their needs tended to almost around the clock. So can law firms hope to retain talented members from the work-life balance generation and still remain competitive?

In an attempt to do so, many firms are offering a range of flexible work arrangements. Others are offering non-partnership tracks, sabbaticals to lawyers who haven’t had enough time off, or are just throwing more money at the problem.

“They try to address their grievances, but many times the firm’s hands are tied because the firms have to be available when their clients are available,” says Kennedy. “It’s a bit of a conundrum. The firms aren’t addressing it completely, but I’m not sure they know how to address it or how it needs to be addressed.”

According to the Catalyst Canada report on flexibility in Canadian law firms, the transition to the new world order isn’t exactly working. The series, sponsored by 10 leading Canadian law firms, surveyed 1,439 lawyers (638 women and 801 men) and supplemented hard data with telling commentary from practising lawyers to provide a real-world glimpse into this growing dilemma.

Although both sexes struggle with work-life balance, women — especially women associates — were more likely to feel their career prospects depend on whether or not they are willing to sacrifice their personal and family lives for their firms. Roughly one in four Canadian lawyers report using a flexible work option, and roughly six times as many women lawyers report using some kind of alternative arrangement compared to their male counterparts.

Lawyers surveyed felt that using options aimed at retaining them — including flextime, job sharing, reduced hours for reduced pay, or telecommuting — would stall their careers, impact their partnership prospects, and affect their income or ability to service clients. For instance, just 22 per cent believe that a lawyer who takes advantage of flexible arrangements won’t automatically get sent to the B team. The majority of lawyers surveyed also didn’t believe that a lawyer who went on either full- or part-time flexible work arrangements could ever make partner.

Their fears are well founded, according to one partner at a top national firm who spoke on a not-for-attribution basis.

The problem stems from the absolute necessity to work long hours at a moment’s notice during emergencies, he says. Most associates would be content to work long hours if they could predict their workflow and plan their schedules, but this is simply not possible, he says, and it’s an incredibly unpleasant experience to be stuck alone during a breaking deal or lawsuit because a part-timer had to go home.

“They’re all emergencies, that’s the problem. You can imagine a client that comes to a lawyer with a big lawsuit or a big deal. These are the biggest things happening to these people. So when I go to staff a deal, let’s say there are three or four good lawyers to pick from, I always tend to shy away from the one who’s only working part-time. You can see how that creates a ghetto.”

Junior lawyers quickly realize what will happen to their careers if they continue to insist on work-life-balance, he says. They end up with the files that no one else wants. “And the other lawyer who is stupider than you, but is prepared to be there around the clock, somehow gets the call all the time.”

Because most lawyers are freakishly driven, many employees on reduced hours, usually women with young children, actually end up doing just as much work for less pay, he says.

The only true work-life option that lawyers have these days is that technology now allows lawyers to work from home during the evenings instead of slogging it out at the office. Not only is everything less painful in a pair of track pants, he says, but parents can eat dinner with their kids, or take a break from work here and there to help them with homework.

For every associate who survives at his firm, he loses four juniors who flee to smaller firms with a slightly slower pace or take in-house positions. The turnover is expensive, but simply means the survivors grind even harder and make an obscene amount of money in the process.

Despite admitting to craving more balance himself, he struggles to come up with non-derogatory terms for this group, calling them complainers, non-performers, and B-team atrophies.

“In the Bay Street firms, you’ve got type-A guys anyways. If someone wants to play type B, they get squeezed out.  I don’t see any model that accommodates even a remotely saner approach to the game.”

The associates who leave are most upset with the lie — often communicated by well meaning but self-delusional managers — that work-life balance can exist, he says.

“They get upset with the image that we hold out, that we can accommodate any type of individual as long as they are smart. We can’t. The model itself does not allow it. Don’t tell them that we have a work-life balance. We don’t. What we do have is cash that will blow away a doctor of an equivalent year. . . . The ones that stick around tend to really enjoy the money.”

But some firms say it’s possible through sheer will and a little bit of compromise on both sides to make a new approach work.

Don Wilson, managing partner of MacPherson Leslie & Tyerman LLP, a leading regional firm in western Canada, says the firm has stopped trying to fit round associates into square pegs. Twenty-five years ago, associates knew they wouldn’t be around long if they didn’t put in as many hours as partner X or Y, he says. But even though some associates still work as hard as ever, the firm now makes room for talented associates with other priorities, as long as they are willing to go to the wall to accommodate clients when there is an immediate need.

“They appreciate that even though they are not on a kill-themselves pace, that there are times when they have to belly up and perform outside of normal business hours. They understand that nobody is dreaming up this need to work on Sunday.”

This approach has allowed the firm to attract and retain candidates they might not otherwise retain, but only because they walk the walk, says Wilson. “You can say it until you’re blue in the face, but until they see it happen, they don’t buy it. After they see that a woman who’s got two kids at home is allowed to stay on the partnership track and work 60 per cent of the time, they know it’s more than talk. And then you get folks staying with you and wanting to come simply because you do offer that.”

Davis & Company LLP, a national firm, consciously fosters a culture of respect for the individual by selecting bright young associates with emotional intelligence over economic billing machines. And a significant number of employees work part-time or are on flexible work arrangements, says Caroline Carnerie, the firm’s national director of professional recruitment.

At 1,650 hours, the firm’s annual billing target is lower than many firms of its size and strength, and compensation rates still fall within market range, she says. When a file comes in, the firm looks at staff schedules and the client’s time line, and creates a business plan for getting the job done. “You don’t deliver lesser services, you are just more proactive in staffing your clients’ needs,” she says.

It’s human nature for people to call upon associates who are physically present, so it’s up to employees on different work schedules to keep themselves visible through e-mail and voice mail, she says. It’s not that different from maintaining contact with a lawyer on another floor who you rarely actually bump into.

 “Quite frankly, in a world where we deal with sophisticated phone and e-mail systems and where we barely have to leave our offices except to go to the bathroom and to visit clients, being relevant on the outside has never been more accessible.”

Davis & Company associate Celia Johnson worked for a Tokyo firm for more than five years before recently returning to Canada for personal reasons. She chose Davis & Company because of its strong presence in Japan. Work-life balance isn’t a huge issue for her. “I think work-life balance is something to achieve over your lifetime rather than during one year or one month. I don’t think law is a profession that lends itself to balance very much.”

That said, she says the firm is a good place for lawyers trying to achieve more balance. People don’t stand around whispering if someone leaves the office at 6 p.m., she says. “There are quite a few people here with young families, and if they want to spend time with their family, that’s fine.”

The Montreal boutique litigation firm Nicholl Paskell-Mede was founded in 1992 by lawyers with young families, John Nicholl and Mindy Paskell-Mede, who yearned for a firm that offered both challenging work and work-life balance. At 1,450 hours, the target annual billing rate for lawyers is lower than average in Montreal N and so is the firm’s turnover rate. One year ago, the firm opened a Toronto office, however, lawyers there choose to set higher billing rates.

The firm’s Montreal office has a solid reputation and remains in the market at the same level as a litigation department in any big firm, says managing partner Jo-Anne Demers, which proves this approach can work. But, she says, it does require lawyers to accept that they’ll make less money than their law school friends who hold the same positions at bigger firms. “You have to come to that realization and you have to accept that.”

Despite exceptions, Davis & Company’s Carnerie believes most firms continue to head towards the work side of the work-life balance scale.

“I think more firms are going the opposite way, despite what we’d all like to see and talk about,” she says. “Generally what happens and what will happen is that people will come into private practice and they’ll use their first several years as a training ground, grin and bear it, and then try to find kinder, gentler places to work.”

In the end, whether more firms will make significant changes to accommodate newer generations’ pleas for more balance remains to be seen. “I don’t know what’s going to happen,” says Kennedy. “You’ve got two very different generations with different approaches to work-life balance. It’s going to be interesting to see how that works itself out. That’s the million-dollar question.”