What Change Lies Ahead, What Legacy Left Behind?

October 27, 2009 by  
Filed under Articles

Change is a common refrain today both in politics and in the profession. Find out how to translate the rallying cry for change into a meaningful dialogue on diversity and inclusion. Read an excellent article below, written by Stacy Hawkins, our former member. 


What Change Lies Ahead, What Legacy Left Behind?

The Legal Intelligencer

By Stacy Hawkins

October 26, 2009

Change is the order of the day. The country flooded the polls in record numbers almost a year ago and carried President Obama to resounding victory all in the hope for change – change in our international policy and diplomacy, change in our economic policy, change in our social policy and even change in the demographics of power. There is an urgency in the manner and substance of the national yearning for change.

There has been a similar rallying cry for change in the legal profession. Corporate counsel have demanded changes in billing rates and billing structures from outside counsel. Law students have clamored for changes in the overworked and overwrought culture of the profession and bar associations across the nation continue to champion the cause for a more diverse profession.

Sometimes change is inevitable. At other times, it requires deliberate action and unrelenting commitment. It seems fairly certain that the recent economic upheaval has precipitated changes in the business of the legal profession that will settle into permanence in one form or another. However, whether and the extent to which the culture of the profession will change depends entirely on the value judgments we make today and the actions we take to manifest those values tomorrow.

Balanced Lives, Better Lawyers

The legal profession has always been notorious for evoking metaphors of “sweatshops” and images of “burning the midnight oil.” Yet, incoming generations of lawyers are increasingly skeptical of the need for “face time” in the electronic age or ballooning billable hours when the new mantra is to “work smarter not harder.” These young lawyers are challenging the conventional wisdom that the old way of doing business is the only way to do business.

Just as the Yahoo generation ushered in the age of the business casual workplace, so too this generation of newcomers is seeking to change the workplace in a meaningful way by integrating the concept of work-life balance into the culture of the profession. In the age of BlackBerrys, laptops and cell phones, most people find themselves actually working longer and harder than ever before. This increased expectation of availability demands greater flexibility in accommodating how and when work gets done.

In a 2001 survey conducted by the Radcliff Public Policy Center, 82 percent of men and 85 percent of women ages 20 to 39 placed family time at the top of their work/life priorities. The sheer demand for work-life balance has caused business schools, such as the Wharton School of Business at the University of Pennsylvania, to offer courses that teach MBA students how to better balance their own lives, as well as how to integrate an appreciation for work-life balance into their management style.

The legal profession has experienced the same shift in priorities. In 1998, the National Association for Law Placement, or NALP, Foundation conducted extensive research on the increased incidence of associate attrition from law firms based on the rising premium placed on work-life balance. The NALP Foundation study found “[t]he decision to stay or leave was most frequently affected by … the unspoken firm policy on the balance of law practice and life” with numerous associates reporting that “they had taken substantial cuts in pay in order to achieve a more balanced lifestyle, and even those who had not yet made such a dramatic move indicated their willingness to earn less for the chance at having a life outside of the law office.”

Prior to the recent layoffs, the trend within the legal profession was toward skyrocketing attrition, with attrition estimates as high as 78 percent by the fifth year of practice, much of it unwanted. There was a mass exodus out of the profession via what has been called the “opt out revolution” (first coined by a New York Times columnist in 2003). Prized young lawyers at the peak of their careers “opted out” of the profession rather than compromise their personal values.

As the economy rebounds, those trends are likely to resume unless there is a shift from the premium placed on billable hours to a value-driven proposition that rewards productivity and encourages a meaningful life outside of work.

New and creative paradigms must be developed to meet evolving expectations around the balance of work and life. Although many legal employers have begun to implement policies that provide greater flexibility to lawyers, many either do not go far enough or are underutilized. According to the latest NALP statistics, although most firms offer part-time or flex-time work arrangements, only 5.4 percent of lawyers utilize them (versus 14 percent in other professional specialties according to the Bureau of Labor Statistics) and such policies are available to all lawyers in less than 10 percent of law firms. Additionally, lawyers who utilize part-time or flex-time policies have often complained of stigmatization and isolation.

As a profession, we must recognize the need for greater flexibility for a broader range of work options and promote a culture that values work-life balance. We cannot afford the inevitable “brain drain” out of the profession that will occur when lawyers continuously choose to opt out rather than sacrifice the important experiences of their lives to the often unreasonable demands of the profession. Critiques that work-life balance is elusive or somehow inconsistent with the demands of the profession are simply a reflection of our current value proposition, not what is possible if we commit ourselves to change.

Leaving a Legacy of Inclusion

Valuing work-life balance is just one aspect of the culture of the legal profession that must continue to evolve. The profession must also continue to pursue diversity and ensure a culture of inclusion. Every generation aspires to leave a legacy better than the one before it. But when it comes to diversifying the profession, so far the legacy we are creating is not a significant improvement on the one we inherited.

While the country continues to rapidly diversify, the pool of future lawyers and leaders of the profession has actually become less diverse. Recent data show that minority law school enrollment, especially among blacks and Hispanics, is on the decline. At the same time, women and minorities in the profession have experienced high attrition coupled with stagnation in advancement. The net result of these negative trends may be a profession that looks less inclusive tomorrow than it does today. That should be unacceptable.

There are noble ideals imbedded in our quest for a diverse and inclusive profession. Much is made of the “business case” for diversity, but we also cannot lose sight of the social imperative that calls us to diversify the profession.

It has long been the aim to promote the full and equal participation by all in the profession and the justice system. Justice Sandra Day O’Connor perhaps said it best in Grutter v. Bollinger when she stated, “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if our dream of one Nation, indivisible, is to be realized.” She could have continued by adding both genders, and members of all groups whether relating to religion, sexual orientation, ability, family status or otherwise.

It was truly a great day on Nov. 4, 2008, when the nation elected the first African-American president. Many people of color across the country declared it a victorious legacy for children of color, who can now truly aspire to one day be president of the United States. What a sad legacy we will leave behind if the diversity of our profession (or lack thereof), rather than inspiring a diverse generation of new lawyers, instead suggests that people of color, or of any religion, sexual orientation, or any other dimension of diversity can be president, but not practice law.

A day will come when the urgency of this moment has passed and all that is left behind is the legacy of the values that defined us. Our values as a profession should reflect the social ideals that we espouse for full and equal participation in the profession and in the justice system. The legacy we leave behind should be a more accommodating and inclusive profession, one that is welcoming to everyone and allows all its members to contribute meaningfully while also leading meaningful lives. •

Stacy Hawkins is a diversity consultant. She was formerly director of diversity for Ballard Spahr, resident in the Philadelphia office. Previously, she practiced in the areas of labor and employment and corporate diversity counseling in Washington, D.C. She can be reached at 215-635-3638 or stacyhawkinsesq@comcast.net.

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