Billable hours 'intersect' with the profession's woes

By DIANE CURTIS
Staff Writer

Diane Faber lived the big law firm life: representing glamorous, high-profile clients in the entertainment industry; working days, nights and weekends with brilliant, demanding legal minds; writing briefs and arguments in her head no matter where she was, and earning the bonuses, perks and choice of cases that come with meeting the minimum billable-hour requirement. A graduate of Yale University and Harvard Law School, Faber had been hired by what is now Manatt, Phelps & Phillips LLP as a summer associate in Los Angeles. She stayed on first as an associate, then a partner and then of counsel. She got what she calls a "Rolls Royce" legal education and excelled in litigation in her specialty of entertainment law. And, she adds, she was well compensated for her work both in money and prestige.

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But 16 years was enough.

"I wanted to make a space because my life was missing pieces," she says. Those pieces included being able to tell children of her friends that she could take off a morning or afternoon to come to a school program and devoting more time to her Jewish faith. She also had thought a husband and children would have been part of her life by then. She was 41 when she left Manatt in 2004.

Some people, especially women with children at home, are allowed to work "part-time" even though part-time at a law firm is usually more than the 40-hour workweek typical in other jobs. But Faber knew the big-law firm culture and knew her personality didn't allow for what she says amounts to being a second-class citizen.

"I'd rather be included in nothing than in half the meetings. At that moment in time, I didn't want to be marginalized at the law firm. I still wanted my pick of the cases. I wanted to be held in high regard."

There was resentment, she said, of colleagues who didn't pull what was considered their law firm weight since somebody had to make up for their unbilled hours to keep profits-per-partner up. "All of the galley slaves need to row at the same pace," she recalls being told by a colleague.

Now happily married with a 7-month-old baby and a consulting/mediation practice that involves from zero to 20 hours a week, Faber struggled to meet the hourly demands of her job but accepted that they were part of the deal of working at a major firm. When she wanted a change, she left.

But many people think it is the law firms that should change. A group of Stanford University School of Law students has created Law Students for a Better Legal Profession, and a major push of their growing, nationwide organization is to create a better work/life balance as lawyers. They want an atmosphere in which those who want a life outside work — those who don't want to regularly work more than 60, 70, 80 hours a week — are not stigmatized and denied a path to becoming partner.

The Project for Attorney Retention, based at UC's Hastings College of the Law, promotes "non-stigmatized alternative work schedules" for a better work/life balance and analyzes firms' part-times policies on its Web site, www.pardc.org. The Heller Ehrman Opt-In Project has questioned the wisdom of the billable hour. And sprouting up in response to client outcries of inflated legal costs — with the added benefit of attracting Generation Y lawyers who want more down time — are a number of firms that separate themselves by bragging that they have found a new way to charge. "No hourly bill. No hourly bull. Law practice the way it should be," cries the Web site for Boston-based Exemplar Law Partners LLC.

Others, like Axiom Legal, charge an hourly rate but one closer to $200 an hour than $500 an hour. And the attorneys aren't pressured to bill more and more hours. "It's not greed that caused the billable hour to start, but greed is what it incentivizes, which is the problem," says Christopher Marston, CEO of Exemplar Law Partners. "Law was a profession that was honored. Now it's become much more of a factory. Counting your life in six-minute increments is no joy. It's no way to live."

An informal ABA survey taken in November 2006 found that 84 percent of the 2,377 associate respondents would be willing to earn less money in exchange for lower billable hour requirements. But it's not a subject law firms are eager to talk about, so it's difficult to find people willing to publicly defend the practice.

Of more than 30 major firms with California offices contacted by the Bar Journal, representatives of only four — and four who have moved toward or are open to alternative billing arrangements — agreed to be interviewed about billable hours: Munger Tolles & Olson LLP, Baker & McKenzie, Townsend and Townsend and Crew and Duane Morris LLP.

More typical were replies like these: "As a general matter, the firm doesn't provide information regarding our billing policies or procedures to the media." "Our firm is not interested in speaking about this subject. Thank you." "Unfortunately we're going to pass on this one. But thanks again for asking!"

Byrne

Shane Byrne, managing partner at Baker & McKenzie in Palo Alto, said there always are going to be cases or projects that require attorneys to work long hours, and with $160,000 starting salaries for associates at big firms, the message is that, when necessary, they need to be available. "One of the big challenges for us in the next few years is putting in place systems and structures that allow people to achieve (a work/life balance) while giving clients what they want . . . Clients will judge you by the weakest link. So you really have to be good all through the organization all the time."

Bart Williams, managing partner at Munger, Tolles & Olson in San Francisco, said his firm would "be missing out on a lot of fine people" if they stuck to rigid billable hour requirements. "It's a question of the skill set that people have," he said, referring to such "difference makers" as phenomenal writers, thinkers, strategists, advocates. "The reality is not everybody is a big rainmaker."

The 2001-2002 ABA Commission on Billable Hours Report summed up the issue this way: "It has become increasingly clear that many of the legal profession's contemporary woes intersect at the billable hour."