It is ironic that the very profession that has had a hand in creating increased legal protections for employees – wage/hour regulations, overtime pay rules, mandatory worker’s compensation coverage, etc. – has done such a poor job of protecting their own. Example, typical lawyers in private practice work far more than 8 hours a day, far more than 40 hours a week, and yet are statutorily excluded from entitlement to overtime pay protection. Why? If an employee drives a truck and is asked to put in several additional hours of work, he or she gets paid time and a half. If an associate in a law firm is asked to stay all night drafting a brief, he does not get paid time and a half. The lawyer is an “exempt” employee, meaning his employer can insist on any number of hours of work for a set salary. Lawyers, most often workaholics by nature, rarely seem to step back and look at the entire picture of compensation vs. work performed.
Consider young law school grad emerging from three years of intensive study and suddenly realizing she has over $100K in student loan debt to pay back. She’s worked hard, very hard, to get where she is and figures that maybe its time to collect the gold ring – a prestigious job (defined as something her family and friends say “oh, wow” to) with a nice paycheck (defined as something that will allow her to trade in her worn out car for a new Lexus and a snazzy new wardrobe). $160K a year? Its a good as a lottery ticket when you are fresh out of school. She’s too enamored by the feeling of being wanted (the law firm must think she’s talented) and the prospect of instant financial success to read the fine print. What must she give the law firm in exchange for the prestige and the paycheck?
Not unlike Ariel in The Little Mermaid, and countless other characters in stories we all know well, she has made the proverbial “deal with the devil.” She got something she wanted, but she must give up something in return and the price is high.
What is the price? What is in the fine print? Let’s start with time. Wage and hour laws across the country define “full-time” as 40 hours a week. A typical associate’s hours? 80/hours a week is not at all uncommon. That is the equivalent of two full-time jobs. So in reality, this young associate has undertaken two $80,000/yr jobs. Wouldn’t one be enough? Aren’t two full-time jobs going to seriously impair one’s ability to, say, spend any quality time with one’s family, participate in a sport or hobby, sleep? Is the money worth it?
Now let’s look at this from the client perspective. Why would a client want to entrust their serious legal matters to a law firm whose associates are overworked, sleep-deprived, and lacking in any work-life balance? Legal work requires sharp, unfatigued, intellect. There is no way that someone who spends 12 hours a day at the office on a regular basis can maintain keen insight at all times. Their brains slow down and don’t work as efficiently, ask anyone neurologist or sleep specialist. So the client is paying for fuzzy-brained lawyers working at a slower mental pace because of sheer fatigue, and billing on an hourly basis.
Seriously, is this the way to run our profession? It’s crazy and, you know what? The clients of the world are figuring it out and demanding a change. The Association of Corporate Counsel’s new Value Challenge is but one example.
I take their challenge seriously, and any law firm who wants to keep their corporate clients ought to do the same. We need to start with restructuring how lawyers perform their work on a day-to-day basis. Ensure, by structure and design of working relationships, that a lawyer’s work product for which a client is billed is not from an exhausted associate at 2am.
And clients, corporate clients in particular, need to stop judging and choosing their law firms based on the AmLaw100 and AmLaw200 lists. Those rankings are based on how much money those firms are able to extract from their clients, and how many billable hours they can extract from their associates, not the quality of work product or the cost efficiency of the work. It is high time that clients needing legal services start developing a new system and new protocol for evaluating law firms and individual attorneys. Its also high time for the legal profession to lead the way, one attorney and one law firm at a time, in offering alternative employment arrangements for lawyers, and resulting higher quality legal services to clients.