By David E. Dean
Originally appeared in August/September 1998 OSB Bulletin
Many over-worked, stressed-out attorneys drowning in a sea of demands from clients, employers, family and friends see part-time work as an attractive alternative to the daily grind of the life of an associate in a traditional law firm. Yet many law firms are unreceptive, if not overtly hostile, to the concept of part-time lawyers.1 To have any chance at successfully negotiating a reduced work schedule at a firm that has not already adopted a formal alternative work schedule policy, an associate must be prepared to address management’s fears that underlie this hostility to part-time positions.
What are those fears? Over the past several months, I have conducted an informal, unscientific survey of partners in a wide variety of law firms in an attempt to determine the types of concerns law firms have about part-time positions for attorneys.2
Although the concerns were expressed in a wide variety of ways, they all boiled down to three main issues: profitability, flexibility and fairness.
Profitability
In today’s highly competitive environment, a law firm must be profitable or it will cease to exist. Any proposal for part-time work that jeopardizes that profitability is doomed to failure.
To successfully address this issue, you must understand the economic considerations implicit in a part-time schedule. The logical starting place is a thorough understanding of how much you cost your firm. Your salary and benefits (including employer-paid taxes, pension contributions, CLE costs, bar dues, parking expenses and any other indirect benefits) are only the starting place. You must also consider overhead expenses (office space costs, marketing costs and support staff costs) attributed to your position. In calculating the cost of support staff, be sure to include a proportionate share of the costs of staff shared by the entire firm (e.g., receptionists, bookkeepers, law clerks) as well as the entire cost of any staff members working exclusively for you.
Once you have determined your share of the overhead, you must next determine the level of profit your firm expects from your position. Your expected profitability level will be dependent upon your level of experience and the nature of the work you perform. In some firms, associates are assigned marginally profitable work that the firm must do in order to retain other highly profitable business from a particular client. An associate performing such marginally profitable work would generally not be expected to be as profitable as an associate performing tasks that can be billed out at a high hourly rate.
Once you have identified all the overhead costs allocated to you and the level of profitability that you are expected to maintain, you need to prepare a written proposal clearly identifying how you will maintain your profitability while working part-time. Generally, it is not enough to merely propose that your salary and benefits be reduced in proportion to the reduction in hours. Given the tremendous overhead of most law firms, such a proportional reduction would not maintain your profitability. Therefore, you must either be prepared to accept a reduction in salary and benefits greater than the reduction in your hours, or you must identify ways in which your proposal to work part-time will decrease the firm’s overhead by reducing the need for support staff, equipment, supplies and, if feasible, office space.
Outright opposition to alternative work schedules is generally not a profitability issue but rather usually stems from concerns about flexibility and fairness. However, in firms that indicated a willingness to consider part-time associate positions, the continued profitability of the associate requesting an alternative work schedule was assumed. Issues of fairness and flexibility would not even be reached if the reduced work schedule would jeopardize the associate’s profitability.
An associate’s value to a firm is not always just a function of the difference between that attorney’s overhead and billable hours. An associate who is a rainmaker, performs administrative functions for the firm, or who develops an area of expertise that enhances the firm’s overall ability to attract and retain profitable clients is more valuable to a firm than an associate who grinds out the work on matters generated by other attorneys. The more valuable you are to your firm, the more leverage you will have in negotiating work schedule. Therefore, if at all possible, be prepared to demonstrate your value to the firm beyond your profitability.
Flexibility
Many of the law firms that opposed the concept of part-time associate positions did so because they believed such an arrangement would adversely affect their clients. They were concerned that part-time lawyers would not be available to cover emergencies, that a reduced work week would unduly complicate the scheduling of meetings and court appearances, thereby delaying the completion of work, and that the part-time lawyer’s absence from the office would disrupt the continuity of work on large projects. All these concerns can be boiled down to a single underlying issue: loss of flexibility.
Law firms, particularly large and mid-sized firms that serve large clients with in-house legal counsel, exist to meet the urgent legal needs of their clients. Associates with such firms are hired to give the partners flexibility in meeting those needs. Reduced work schedules are viewed unfavorably because they are seen as reducing that flexibility. The fact that alternative work schedules can increase the firm’s flexibility is often overlooked.
Any attorney proposing part-time work must address the firm’s need for flexibility. Back-up child care arrangements, accessibility in emergencies and availability to work additional hours to complete large projects or meet unexpected client needs must all be addressed. Be prepared to point out how your reduced work schedule gives you the capacity to occasionally increase your hours to meet unexpected client needs, thereby increasing your employer’s flexibility.
A word of caution. While flexibility is absolutely necessary, too much flexibility can lead to a gradual erosion of your time away from the office. This potential for time inflation should be addressed by including a spill-over clause in the alternative work schedule agreement. Typically, a spillover clause provides that, when the hours worked exceed an agreed-upon number of hours, the lawyer will be paid for extra hours on an hourly basis. The hourly rate should be set at a premium over the rate paid for time within the part-time commitment to discourage excessive use of spill-over time. Avoid the use of compensatory time off for spill-over time. Client demands, work load and personal commitments will often make it impossible to schedule the additional time off work.
Fairness
Attorneys seeking part-time positions are not alone in their desire to balance demands of work, family and personal pursuits. The managing partners who must approve any proposal for a reduced work schedule also struggle to balance the demands of running a law firm with the often conflicting demands of their personal and family lives. Anything they see as a threat to the precious time that they spend with their own families and personal pursuits will most likely be resented and rejected. Unfortunately, part-time work arrangements are frequently viewed as just such a threat. Either they are viewed as just one more administrative hassle which will increase the work load of the managing partner, or they are perceived as devices by which additional legal work is shifted to the remaining full-time attorneys. In either situation, the associate’s reduced work schedule is seen as being unfair to either the managing partner or the other full time attorneys.
This is not an economic issue that can be satisfied by agreeing to take a disproportionately large reduction in pay or by agreeing to delay or forego consideration for partnership status in exchange for the privilege of working part-time. It is an equity issue that can only be overcome by directly addressing management’s fear that allowing one attorney to work part-time will unfairly increase the work load of the remaining full-time attorneys, thereby reducing the already limited time they have available for their own families and personal pursuits. Therefore, any attorney proposing part-time work must be prepared to demonstrate that the reduced schedule will not significantly increase the work load of the remaining full-time attorneys.
Attorneys seeking to balance the demands of career, family and personal interests should not be discouraged from seeking alternative work schedules. Many attorneys in firms of all sizes and types have successfully made the transition. Like anything worthwhile, a more balanced life is worth fighting for. Prepare for the battle by seeking out and addressing management’s concerns, and your chances of victory will be greatly enhanced.
David E. Dean is a shareholder with Susak, Dean & Powell, Portland, where he has been the managing partner since 1990.
Endnotes
1 A national survey of large law firms published by the National Association For Law Placement indicates that 91.7 percent of law firms in the state of Oregon make part-time schedules available to associates but that only 4.5 percent of associates took advantage of these part-time schedules. However, the survey only dealt with 12 law offices in Oregon. My own informal survey showed much less acceptance of part-time schedules particularly in the mid-size and small law firms in which a majority of Oregon attorneys practice. Several of the large law firms that I contacted were more receptive to part-time positions and had formal alternative work schedule policies.
2 No attempt was made to explore the issues surrounding the use of contract attorneys.