News & Termine

25.10.2017

Fix the Firm or Fix the Woman? - How the demise of the superhero myth would benefit both law firms and their clients.

The legal profession continues to be dominated by men. This makes women’s entry into, and progression through, the profession very difficult. How can we promote women in the legal profession? The authors speak against programs designed to help female lawyers be more like their male colleagues. They argue for a new way of evaluating legal work. With five concrete proposals, they describe how a law firm can not only become an attractive employer for women (and men) but also, and at the same time, become more attractive for clients.

This is the English version of the article “Fix the Firm or Fix the Woman” which first appeared in the May edition of the Anwaltsblatt 2017 and is available online at: https://anwaltsblatt.anwaltverein.de
The article is written by Emma Ziercke and Markus Hartung and is based on a speech given by Markus Hartung at the 12th Annual Conference of the Berliner Instituts für Anwaltsrecht der Humboldt-Universität on 15 November 2016.

I. Where are we now?

One might be forgiven for thinking that gender diversity in law firms is “old hat”. Last year the English Law Society reported that the legal profession was being “feminized” as women were set to tip the gender balance by making up almost two thirds of all lawyers under the age of 35.  The number of female partners in UK law firms has also increased steadily to an impressive 30%. Admittedly, things aren’t quite as rosy in Germany. The dial for female representation seems to be stuck at around 10% in the partnership, despite women making up 45% of all newly qualified lawyers . Some law firms are undisturbed by this fact, and are proud to take out full-page advertisements announcing their newly elected, solely, male partners.

More concerning than complacency however, is Hilary Sommerlad’s recent publication (“A pit to put women in: professionalism, work intensification, sexualisation and work-life balance in the legal profession in England and Wales” ) which concludes that, despite 30 years of Diversity & Inclusion initiatives, there has been little impact on the hyper-masculine work culture that is the legal profession. Even outside of the legal profession, the authors of “Why we just can’t handle diversity”  which was published in the Harvard Business Review, lament the fact that most companies’ diversity strategies are stuck in the 1960s.

Amongst the dearth of information on gender diversity in law firms, the real problem lies in the fact that there is nothing new about gender diversity. We feel as though we have seen and heard it all before. Perhaps it is because gender diversity isn’t viewed as something which affects everybody. In fact, gender diversity is widely regarded as a woman’s issue. Or is it because gender diversity isn’t recognized as a problem at all? Law firms are built on an up or out model, the fact that more women than men drop by the wayside is just part of natural evolution. Or is it because the problem cannot be solved? Whether we like it or not, clients pay for a 24/7 service, and law firms pay their lawyers accordingly. Long-hours are part and parcel of being in the legal profession.

II. Five proposals on how to increase the number of women in your firm

Should you be of the opinion that the low number of women in private practice really is a problem, especially when the number of women in the German judiciary is increasing, and if you want to increase the number of women working in your law firm, then you should consider the following fundamental pieces of advice (and in this order):

1. Appraise associates on their work, not hours worked
The law firm model focuses on input, rather than output. Thus the model rewards those who can put in the most number of hours: The associate who bills 2,500 hours per year is considered to be a “top performer”. This input-based business model has far reaching implications for the reward system and culture of law firms. The belief that the longer and harder you work for your firm, the more you will be rewarded leads to a working ethos which amounts to “more desto better”. The standard reward and appraisal system perpetuates this belief. Long hours are equated with respect and become part of a lawyer’s estimation of his or her own self-worth. These values are reinforced by war stories about the number of all-nighters worked and partners bragging about missing family events to clinch the deal for their client.

In fact, many international law firms in Germany believe that clients in M&A transactions require their lawyers to be on-hand 24/7 and thus 60 or 70 hour working weeks are to be expected. If you want to be a “Top Performer”, you will need to put work before family: You can’t have your cake and eat it. Top Performers simply don’t work part-time (part-time being anything less than a 70-hour-working week).

Couldn’t this circle be broken if lawyers were predominantly assessed on their productivity and outcomes (i.e. efficiency and client satisfaction)? Wouldn’t this actually have a positive impact on the appraisal and reward system and keep the client happy (who continues to complain about the inefficient and expensive input-based billable hour)? Lawyers should be motivated to provide excellent client service and be rewarded regardless of whether it takes 10 minutes or 10 hours. Encouraging investment in non-billable (but highly valuable) activities like innovation, mentoring and team management, as well as incentivizing lawyers to work more efficiently, would lead to overall better results as well as making flexible working more acceptable.

Traditional diversity strategies dictate that firms should offer flexible working to women to encourage them to stay on, especially after having children. HR leaders however, often complain that their firms’ flexible working policies are not taken up. Is it any wonder then, that women (and men) don’t want to take up flexible working offers, as it could harm their careers? That only Superheroes have a chance in a law firm? This is a point that the younger generation have picked up on. A number of research projects carried out by the Bucerius Center on the Legal Profession reveal that young lawyers are seeking “genuine” work-life balance role models and careers that won’t be adversely affected by part-time work . The reaction from law firms? More money. They offer Tomorrow’s Lawyers higher salaries, even when they know it will not solve the problem.

2. Create alternative career paths
Law firms need to act quickly to develop alternative career paths. The demand for “non-partnership” careers from the younger generation is growing. The secret lies in making part-time work and alternative career paths a credible, respected and attractive employment offer. Partnerships themselves need to embrace diversity by refuting the “Superhero” illusion  and encouraging associates to bring a diverse set of skills and background to the partnership. Only then can one establish a group of highly motivated and productive colleagues. Finally, it is a waste of money and an inefficient use of human capital to allow women to drop out of the pyramid so that we are left with a mostly male partnership.

Most law firms want to hold onto associates long enough for them to become profitable: so around their third or fourth year. By this stage too many female associates have already left the firm. Law firms are not investing in their own future, but in the future of their competitors. This amounts to some $9.1bn in the USA alone, according to a report  on the turnover costs of the top 400 law firms. Furthermore, legal departments and small law firms are filled with Big Law refugees . Whether Spin-Offs, alternative legal service providers or established Boutiques, Big Law’s defectors are turning into Big Law’s competitors.

3. Improve your work processes
The 24/7 dogma is just that, a dogma. The availability of resources is essentially a question of organization. Nowadays law firms’ exposure to project management techniques and the increasing diversification of tasks should mean that law firms are capable of being better organized. Obviously this is not the case, or at least not in law firms. One just has to look at the array of successful project management ideas that are being implemented, whether by Spin-Offs, innovative legal advisors or clients, who are able to provide 24/7 service under more humane conditions.

The next generation of lawyers are even suggesting shift work, or “emergency lawyers” to deal with the unpredictability of legal work. Law firms tend to confuse input with output. They assume that the level of input (work force, higher salaries, the greater the number of hours worked) has a corresponding effect on the output, being the value and use derived by the client. Cost does indeed vary as the product of the number of lawyers and the amount of time invested in a matter, but it has no impact on the value. Hence the man-month, as a unit for measuring the size of a job is a dangerous and deceptive myth . After all, how productive was that 69th hour?

By incentivizing lawyers to work more efficiently, firms can achieve a greater degree of control over input. Furthermore, it will also become easier to find an appropriate alternative to the billable hour.

4. Communicate!
Sometimes things go wrong simply due to a lack of communication. For example: A group of partners, keen to retain a high potential female associate, offer her a counsel role on the basis that she is recently married and will want to start a family. The partners think they are doing her a favour by offering her a family-friendly role. The associate is bitterly disappointed, believing the firm doesn’t think enough of her to offer her partnership, and leaves. We shouldn’t make assumptions about what women do or do not want. In fact, the risk of being “blind sided” by the junior female associates who leave for work-life balance reasons can be reduced to the extent that firms can create a working environment where people can talk about family matters. In addition, associates need to be provided with appropriate support through mentoring and sponsorship. Furthermore, by engaging more with associates and opening up dialogues, you can gain valuable insights into exactly why and when women in your firm are leaving – perhaps these reasons are not so very far away from those of your male associates?

5. No leadership programs for women!
If you have been paying attention thus far, perhaps you are asking yourself the question, why none of these solutions contain a suggestion for a women’s leadership program? For the following reasons:

a) Why fix the woman may be easier, but changes little

In 2013 Sheryl Sandberg has been advising women to “lean in” or “sit at the table” in order to get ahead in the workplace. In many respects this is nothing new, books such as “Nice Girls Don’t Get the Corner Office – 101 unconscious mistakes that women make that sabotage their careers” have been around for years. Indeed, this is the gist of law firms’ diversity strategies, which are predominantly centered around helping women to lean in: leadership training, assertiveness training, coaching and network building. Such strategies have their pros and cons: Some women genuinely benefit from the advice and the opportunity to up-skill but some women never saw gender diversity as an issue until they were selected for some “women’s only” training. Furthermore, a certain generation of female law firm partner is also wondering what all the fuss is about, given that she made it to partnership long before “Lean In”.

In organizational terms, a “fix the woman” strategy focuses on assimilation, rather than acceptance of differences. Its goal is to help the minority (women) change in order to become more like the majority (men). Where there is, in any organisation, a dominant group, the secondary group must either homogenise to the dominant group, overthrow the dominant group or leave. Thus one can see that strategies focussing on changing the individual leave the working environment untouched. Furthermore, focussing on fixing the woman makes it a woman’s issue, and the problem with making it a woman’s issue, is that men tune it out.

b) Why focusing on numbers is distracting

Quotas are not the panacea for diversity. According to a recent study by Allen & Overy  many firms are wasting too much time on attaining targets of “zero” women. Focusing on meeting quotas and targets can distract from the underlying issues.  Why are law firms content to strive for 20-30% women in the partnership, and not 50%? What do we do when we reach 29%? Stop?

Quotas and targets are a red herring for diversity and do not actually measure “diversity” itself. Having one more woman in the partnership does not necessarily mean you have a “diverse” law firm. Diversity used to mean differences based on age, gender, race – visible differences. The younger generation see diversity more broadly: Diversity includes all kinds of invisible differences: your culture, class, upbringing, religious beliefs, hobbies, and more. The essence of diversity is an acceptance of other peoples’ perspectives and values. Its effects should be seen in improved team-work and more effective client service – this is what we should be measuring, not the number of minorities.

A focus on equality actually leads to homogeneity, not diversity, when it is achieved by strategies which are designed to help the minority fit with the majority. Furthermore, it leaves the dominant culture untouched, and this is what is leading women (and men) to opt out. Attempting to achieve diversity by making things equal is also counterproductive. It promotes sameness rather than diversity and can inadvertently lead to unfair outcomes. Women in particular suffer under the “double burden” phenomenon: equal access to long-hour jobs, without complementary changes to social norms around sharing household responsibilities, increases the pressure on two points at the same time. This leads some women to opt out of work altogether.

c) Why unconscious bias remains hidden
Privilege is invisible to those who have it, and that’s how privilege works. Many law firms engage in “unconscious bias” training in order to combat the awkward situation where a partner asks his female colleague to serve the tea . But despite the existence of some apparently successful behavioral change programs, the jury is still out as to whether “unconscious bias training” has any long term effects.

According to a study by Dobbin and Kalev,  unconscious bias training does no more than teach people to respond correctly to a questionnaire about bias, and they soon forget the right answers. Far better would be to encourage employees to take individual responsibility for ensuring diversity in their teams. Voluntary training leads to better results than a command and control approach, which can even activate bias.

d) Don’t fix the woman! Fix the firm!
Gender diversity issues permeate the law firm system. The key problem is not that we don’t know whether a “fix the woman” approach will benefit women or not, but rather the potentially damaging effect it has on diversity if we continue to rely on it as a strategy for improving diversity. A fix the woman approach to diversity promotes initiatives that are directed at changing the individual rather than addressing structural or operational inequalities. This doesn’t go unnoticed and results in women leaving the profession, the consequences of which will be dramatic in the long term.