Is it time to start disciplining law firm management for creating ethically hostile work environments? Publically shaming the worst culprits is surely the least we should do.
This isn’t a new thought, of course. It’s difficult to read Prof. Patrick Schiltz’s description of BIGLAW culture, or the other pieces cited in our sermon last year, without wanting to do something about the work pressures that now exist in our “best” law firms (and those that want to be like them) to produce billable hours and endless profits.
The New Jersey Law Journal article featured in our post yesterday (along with background research), focused my attention on just how thoroughly our profession is permeated with a culture that makes fee generating far more important than client service and professional ethics. (“Sorry, Addiction and Work Pressures Don’t Lead to Light Ethics Sentence,” 02-16-04; free reg. req’d), It’s not just the big firms or the “boutique elite.” Despite my feeling that work pressures should not mitigate disciplinary sanctions for neglecting duties to clients, I am sympathetic to the plight of lawyer Bowman, which was discussed in the NYLJ article.
According to the article, Bowman “testified that he suffered from alcoholism and that he was stressed out by long hours of work and civic activities required by his firm.” The disciplinary board explained,
If an attorney at Gruccio, Pepper did not meet the required ‘billing goal,’ his salary was withheld and possibly forfeited.” Bowman just couldn’t say no.
Here’s the for-publication response from the firm in question to Bowman’s three-month suspension, as presented by NYLJ:
At Bowman’s old firm, partner Lawrence Pepper Jr. says, ‘It’s unfortunate what happened. We’re heartsick about it.” He won’t say what punishment Bowman deserves, but he does not dispute the notion that long hours, hard work for clients and time spent in civic activities are required at his firm, or any other firm that takes its work seriously.
“When you are diligent for your clients, you work long hours,” he says. “Unfortunately, in today’s world, sometimes the pressure gets to you.”
Makes me all warm inside, and most pleased that clients can expect uncompromising diligence (zeal, too, I bet).
We might have expected some useful guidelines and limitations from the profession by now, given all the words written and spoken about the evil of excessive hourly billing (see, e.g., The Hours, by Niki Kuckes; and Matt Homann’s soapbox). Indeed, the ABA’s Ad Hoc Committee on Billable Hours produced a Model Diet meant as a “best practices” summary for law firms — “that ensures a level of billable and non-billable activity to serve not only the interests of an acceptable level of productivity given the firm’s reasonable profitability aspirations, but also other important objectives.”
There’s one big problem with this Diet, however: it is based on “2300 Creditable Hours for Lawyers” per year. The profession’s “leaders,” after thoroughly studying the problems surrounding law firm demands for excessive billable hours, somehow concluded that 2300 hours is “significant” but “manageable”:
The model reflects an assumption that law firm associates are willing to work hard, that the profession is demanding, but that it provides great rewards, not only monetarily but also through the challenge and stimulation of work for paying clients as well as the other activities reflected in the model. The total is, at the same time, manageable — it represents less than 50 hours of recorded, professional time, billable and non-billable per week, allowing for vacation, holidays, etc. We do not view that as an unrealistic burden for incentivized, enthusiastic, hard-working associates who enjoy what they do. Indeed, the allocations suggested for all types of work — billable and non-billable — are designed to provide a varied set of challenges and to enhance the psychic rewards of the practice.
With that introduction, the proposed typical “diet” is:
Billable client work — 1900 hours
Pro bono work — 100 hours
Service to the Firm — 100 hours
Client Development — 75 hours
Training and Professional Development — 75 hours
Service to the Profession – 50 hours
This might make a lot of law firms feel righteous, but it is not the least bit reasuring from the perspective of a healthy profession or a well-served clientele. As it takes considerably more than an hour to create an hour of billable time, the Diet is prescribing perhaps 60 hours per week on average for associate attorneys (after allowing for a bit of vacation, plus sick and holiday leave). Not much pressure there!
So, what can we do? Suspending (or even reprimanding) the entire leadership of the profession, and virtually all managing partners, might be unworkable and unpopular. Doing “ethics environment” audits one law firm at a time just might work. Confidential employee complaints could begin the process. Why shouldn’t we hold partners responsible for the work environment they create and perpetuate? quixoteEsq is on the case. Get your donkey, Pancho, and come along.
- In the meantime, besides re-reading Professor/Dean/Judge Patrick Schiltz’s article,”On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871 (81 pp pdf), check out The Dangerous Link Between Chronic Office Chaos, Stress, Depression, and Substance Abuse (ABA General Practice magazine, by Nancy Byerly Jones, July-Aug. 2001). Jones says “If ignored for too long, chronic problems at the office can play a big part in setting the stage for battles with depression, substance abuse, and other stress-related problems.” The article includes 29 tips for a healthy law office.