The “Opt-In Project” Inspires Change In The Legal Profession

by Anna T. Collins, Esq (Portland, Maine)

When I first interviewed Patricia Gillette, an employment law expert and partner at Orrick in San Francisco, I noticed two things about the way she spoke about the future of the legal profession. First, despite the temptation to point fingers when discussing the ever-present wage gap in the legal profession, Pat Gillette focused on solutions. Second, she was optimistic about the possibility of change in the profession, especially due to the shifting economic reality. In Pat’s view, for example, women may be at an advantage as firms shift away from hourly fee structures – a shift that may be inevitable as the economy turns sour for law firms and clients. Women lawyers, in Pat’s experience, are at times more efficient at completing assignments. While the current billable hours system may not value the fact that they are able to complete work quickly, the legal profession of the future is likely to value this type of efficiency.

Pat’s focus on solutions and optimistic view of the possibilities for both women and men becomes less surprising and more poignant when one considers her work as co-founder of the Opt-In Project. The Project was partly a response to various articles published around 2003, which all examined what has been coined the “Opt-Out Revolution.” In articles such as “The Case for Staying Home,” “Mommy Madness,” and the infamous “The Opt-Out Revolution,” authors depicted the “trend” of women obtaining the highest levels of education, entering the workforce in record numbers, and then choosing to leave.

The founders of the Opt-In Project wanted to test the “Opt-Out” conclusion against the theory that women were actually being pushed out of the workplace. The ultimate mission of the Opt-In Project, created in 2006, was to “tap into the wisdom of industry leaders to find innovative strategies for the retention of professional women in the workforce.” Ultimately, the goal of the Project was to create a forum to take the discussion to the next level: Are there more sweeping measures that should be considered to create greater career sustainability for both women and men?

Despite its ambitious nature, the Project cannot be described as anything other than “a success.” Over a period of an entire year, the Opt-In Project brought more than 900 people together from a variety of industries for events in San Francisco, Silicon Valley, Washington, D.C., and New York. Industry experts started each evening by presenting their ideas for improving retention and leadership opportunities for women. The conversation was then turned over to participants for smaller group discussions, which generated many ideas. These ideas, which are summarized below, are described in full detail in the Opt-In Project Report. The Report is available at the Opt In Project website.

1. High Attrition in the First Five Years Can be a Drain on the Economics and Morale of the Firm.

The notion is that law firms, just like most businesses, worry about attrition. According to the Opt-In Project Report, the attrition rate for associates before their fifth year is 57%, and in 2005 that rate increased to 78% in some firms. The Report concludes that such exodus of talent is damaging and law firms can take the same steps as those taken by investment banking firms, accounting firms, and others.

For example, law firms may be able reconfigure the first two years of practice to increase loyalty of young associate attorneys, who may be tempted to stay just long enough to pay off a significant portion of their law school debt. Firms could consider various options, such as having no billable hour requirements and lower salaries for the first two years of an associate’s career. Firms could also allow associates to choose between various salary levels based on how much time they want to work in a particular year, “with the understanding that a reduced workload may impact the time frame for partnership.” Firms could even consider “paying back law school loans for new associates, in exchange for a commitment from the associate that he/she will stay with the firm for a period of years.”

2. The Way Law Firms Track Hours and Bill For Services May Cause Unwanted Attrition

The Opt-In Project Report notes that law firms adopted the billable hour structure in the 1950s and are now stuck with two primary ways of increasing revenues: raising billable rates (creating pressures for clients) and raising the number of billable hours (creating pressures for both associates and partners). In light of the fact that accounting and consulting firms have been slowly moving away from the billable hour business model, relying more heavily on a project oriented billing system, the Opt-In Project Report challenges firms to consider whether the time has come for a similar change in the way law firms charge for services.

To the extent that minimum billable hour requirements are used as in internal measurement of attorney success, leading to the expectation of billing more hours, law firms could consider:

• Measuring performance and setting salaries without reference to the number of hours billed, focusing instead on such things as productivity (in terms of such things as the number of deals completed, or demonstrated efficiency in writing briefs or memos, preparing for deposition, or responding to discovery), quality of work, team work, client skills and participation in firm activities.
• Having bonus structures that reward productivity (as defined above) and high performance, not number of hours worked.
• Capping the number of hours an attorney can get “credit” for in any one day.

While clients are used to paying by the hour and may be nervous about alternative billing arrangements, the Opt-In Project Report suggests that alternative billing models will be more successful if they focus upon predictability and client involvement. Firms could, for example, consider:

• Creating viable alternative billing arrangements that give clients predictability and control over legal costs
• Actively marketing and encouraging clients to consider different ways of billing for services rendered

3. The “Up or Out” System May Cause Good Attorneys To Leave

The Opt-In Project Report notes that “[c]urrently, many law firms follow an ‘up or out’ system, mimicking the famous scene from The Paper Chase in which the law professor emphasizes from day one how students who ‘don’t have what it takes’ will be gone by the end of the first year.” Just as accounting firms have chosen to build “lattices” rather than “ladders” in response to the opt-out phenomenon, the Opt-In Project Report suggest law firms may be able to do the same.

The idea of the “lattice” model is that both newly-hired and seasoned employees should be able to customize their career along the way. More specifically, the Report suggests law firms consider redefining promotional opportunities. Rather than tracking attorneys by the number of years out of law school for decisions affecting salary and promotion, for example, law firms could consider tracking attorneys by performance and skill development or have more levels of success so that partnership is not the only alternative for associates.

The Report also recommends focusing on career management over the long term. According to the Report, firms manage each year of an attorney’s career. “This can lead to a skewed vision of an attorney’s value and contributions to the firm,” the Report explains “and suggest a ‘what did you do for me lately’ mentality.” To amend this, the Report suggests several possibilities, including:

• Evaluating attorneys in the context of their careers by building identifiable and articulated skill sets that attorneys must achieve over the course of their careers and measuring their success against these skill sets.
• Doing away with the up or out system to increase the chances of keeping star performers who want to (or have to because of life circumstances or obligations) move up at a different rate from their peers.
• Requiring consultations between associates and partners as to how required skills will be developed and when they will be developed.
• Implementing a mandatory system in which every associate plans the next five years of his/her career with his/her managing partner by addressing and planning for issues that might impact the rate of forward progress.

Finally, the Report recommends that firms create “on-ramps.” “Some law firms have created programs to keep up strong ties with attorneys who have left the firm in good standing,” the Report explains “These ties, however, are often focused on potential client development rather than on the talent pool these attorneys represent. As a result, little attention is paid to trying to recruit these attorneys back into the law firm.” To amend this gap, the Report recommends law firms consider:

• Keeping bar memberships active for some period of time after an attorney has left the firm.
• Inviting alumni to in-house training programs in their practice groups.
• Inviting alumni and attorneys on leave to continue to hone their legal skills by providing pro bono services under the auspices of the firm.
• Partnering with law schools to create training programs for attorneys who have been out of practice for more than three years to bring them up to speed on technological advances and legal developments in their area of expertise.

4. The Workplace of the Future May Require Flexible Arrangements and Workdays

While technology has enabled attorneys to work from home, the Opt-In Project Report recognizes that there are also disadvantages to technology since it forces the extension of the workday into what was once “personal time.” To address this modern shift, the Report recommends not only consideration of flexible work policies, but a more involved firm role. Firms could consider, for example, “having regular in-person meetings of teams” or “putting a message on e-mails coming into and leaving the office system after 7 p.m. on Fridays stating ‘Are you sure you want to send this message or can it wait until Monday morning?”

The Opt-In Project Report also discusses some novel ideas about the re-definition of the “work year.” Firms could, for example, consider allowing attorneys to design the work year so that certain times are more productive. Similarly, firms could permit attorneys to take “no-fault” time off for up to a year or paid sabbaticals.

5. Part Time Should be a Viable Non-stigmatized Option for Men and Women

In light of the fact that the common challenges to the part-time person are “keeping to the schedule, getting good assignments, continuing to advance in his/her career, and being stigmatized or viewed as a second-class citizen,” the Opt-In Project Report focuses on various strategies that may help make part-time more mainstream rather than an exit-strategy. To ensure that part-time employees get the same types of assignments as other employees, for example, law firms could consider including attorneys who are part time on firm committees to keep them connected to the firm or measuring partnership readiness by skills developed rather than years worked or full-time status.

In addition, the Report notes that part-time status has turned into a “women’s issue” due to the fact that the majority of part-time attorneys are women. With only women in part-time positions, they feel stigmatized, which sometimes causes them to leave the firm. The Report suggests several options for change, including:

• Making sure men (as well as women) are apprised of part-time policies
• Providing and promoting male role models who have taken advantage of such policies
• Proactively advising both men and women of part-time schedule opportunities when a child is born
• Ensuring that partnership opportunities are not adversely affected by part-time status by promoting qualified part-time associates to partnership status and by allowing for part-time partners.

6. There is a Need to Create Buy-in at the Top and Accountability Throughout the Organization

The Opt-In Project Report recognizes that none of these ideas work without “recognition at the highest levels of the company or law firm that changes to the work structure need to be made.” In order to create buy-in at the top, the Report makes the case that economics matter and firms ought to consider paying more attention to the financial impact of unwanted attrition as well as the rewards of a more steady and permanent group of associates and partners. Similarly, firms could track the number of clients who are expressing an interest in diversity and a willingness to reward law firms that attract and retain diverse talent at all levels.

In addition, the Report notes that visible commitment to a balanced work environment is vital to the retention of women. Firms should consider variouis options including encouraging managers to talk openly about family obligations and activities in which they engage; putting work-life balance as a priority in statements about culture; normalizing alternative work styles by encouraging visible and influential members of the firm to use them; and making management accountable for the retention and promotion of women by including these numbers in performance measurement and evaluation systems.

The leaders of the Opt-In Project recognize that none of these ideas will be applicable or acceptable to all law firms or businesses. Yet, the ideas are vital, since they will inevitably generate deep discussion about how the profession will move forward. In light of shifting economic realities, the time to consider and debate the above-outlined ideas is here. Ultimately, everyone is likely to benefit – both clients and firms – if women and men “opt in.” Perhaps this is why Pat Gillette is optimistic.