A profession that has structured its role around solving problems for others has been curiously passive in the face of its own discontent. Recent changes in the conditions of practice have left many lawyers in a state of wistful resignation. They see workplace demands increasing, and civility and collegiality moving in the opposite direction. Yet many seem to lack a sense of control over their collective future. What most lawyers need to change is a belief about what change is possible.
In an influential essay, “The importance of What We Care About,” philosopher Harry Frankfurt emphasized that individuals are most fulfilled when they engage in work that they find meaningful and reflect at the deepest level about what meets this definition. It is, in short, important to remind ourselves what we care most about, and to refuse to settle, at least in the long term, for workplaces that fall short. Although not all the downsides of legal practice are easily avoided, lawyers could do much more, both individually and collectively, to reduce the gap between expectations and experience in their professional lives.
At the individual level, lawyers need to be more proactive in identifying and developing their strengths, and in finding work that will engage their capacities and aspirations. That, in turn, will require individuals to become more informed and self-reflective in their career choices. One step to that end is the emergence of rankings and data bases, like the Building a Better Legal Profession movement and the American Lawyer A-List, which grade selected law firms on factors such as diversity, work/life programs, associate satisfaction and pro bono activities.
Students should demand, and insist that their placement offices demand, more such information, including how workplace policies function in practice. How does part-time status or substantial pro bono involvement affect promotion and compensation decisions? How much control do lawyers exercise over their schedules and over the kinds of assignments and public service opportunities available?
Career fulfillment – on your terms
Once employed, practitioners also need to press for such control. That is particularly important for women, who are socialized not to appear pushy or aggressive. As the title of the path-breaking book on negotiating behavior noted, Women Don’t Ask. But when it comes to professional development and work/family tradeoffs, lawyers of both sexes need to ask; they must actively pursue what is necessary for fulfillment. In one study on career advancement, the most effective strategy was impatience; individuals benefited from seizing every opportunity and leaving a position when a more challenging opportunity became available. At the same time, professionals committed to improving their current situation often find strength in numbers. Organizing colleagues both within and across workplaces can significantly improve diversity and work/family policies.
At the institutional level, legal employers must do more to address sources of discontent and to evaluate the adequacy of their responses. A commitment to quality of life needs to be reflected in workplace priorities, policies, and reward structures. That, in turn, will require systematic evaluation of lawyers’ satisfaction, and of practices that affect it, such as mentoring, diversity, and work/family initiatives.
Decision makers must track whether underrepresented groups such as women and minorities are advancing in numbers equal to white male counterparts, whether all groups feel equally well supported in their professional development, and whether they find part-time and mentoring policies effective. So, for example, do lawyers working reduced hours find that their schedules are respected, that their pay and benefits are proportionate to their performance, and that they retain opportunities for advancement and desirable assignments? Do participants in formal mentoring programs feel that their assigned mentor has sufficient time, interest, incentives, and knowledge to provide the necessary support? Are supervising lawyers adequately trained and evaluated in mentoring, performance appraisals, and treatment of subordinates? Do junior lawyers have an opportunity to rate supervisors in forms that matter in the organization’s reward structure?
Too many employers now lack adequate evaluation structures, and invest substantial time and money in initiatives that fail to meet the needs of their intended beneficiaries.
Professional satisfaction and pro bono culture
Too many legal organizations are also insufficiently supportive of pro bono work. Recent research makes clear what has to change. Employers must make a visible commitment to public service that is reflected in resource allocation and reward structures. In particular, employers should:
- provide full credit for pro bono work toward billable hour requirements;
- value pro bono work in promotion and compensation decisions;
- develop an effective system for matching participants with work that they find fulfilling, and ensuring adequate training, supervision, and performance;
- require lawyers to meet the ABA’s aspirational rules on pro bono representation, which requires 50 hours per year, or the financial equivalent.
- an equivalent requirement exists at the Canadian Bar Association. The CBA recently launched the Pro Bono Mentorship Program, which supports lawyers who are currently involved, or wish to be involved, in pro bono legal work, by connecting them with mentors who have experience in pro bono or in an area of law relevant to the pro bono. (Full details are available by consulting the Pro Bono Mentorship Handbook)
- adopt a definition of pro bono work that focuses on the public good, not the concerns of family, friends, partners, or paying clients.
Reforms are also necessary in the structure of practice. One promising initiative involves law firm tracks that allow different hours and compensation tradeoffs without second-class status. Another option is for organizations to match lawyers with projects that fit their substantive and scheduling preferences; often this work is done from home or client offices to maximize flexibility and minimize overhead expenses. Fee arrangements that reduce reliance on hourly billing can also be helpful in reducing pressures for overwork.
More lawyers could experiment with dispute resolution models that mitigate the acrimony often accompanying adversarial processes. One example is collaborative lawyering, in which parties commit to cooperative problem solving; if they are unable to reach a negotiated settlement, their lawyers will not provide representation in subsequent litigation. By removing lawyers’ economic incentives to prolong proceedings, the arrangement gives all participants a stake in minimizing conflict.
Clients should also pressure legal employers to address sources of chronic dissatisfaction. On some issues, clients have an obvious financial interest. They seldom get cost-effective service from bleary, burned-out practitioners, and high rates of attrition involve disruption, inconvenience, and additional training expenses. So too, a growing number of corporate counsel see diversity as an economic as well as moral imperative. They want firms that make full use of available talent, and that offer lawyers with a range of backgrounds and perspectives. To that end, many large corporations have pledged to consider diversity in allocating legal work. More clients need to follow suit, to put teeth in their commitments, and to add concerns like pro bono activities.
Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School and Director of the Center on the Legal Profession. This article is excerpted from the foreword to a recent issue of the Syracuse Law Review (Vol. 58, No. 2, 2008) devoted to “Perspectives on Lawyer Happiness.” Reprinted with permission from the author.