Law firms hoping to snag Del Monte’s legal business are facing added scrutiny these days.
The food giant earlier this year began questioning firms about their part-time and flexible work policies, making it clear that it wants at least some part-time attorneys handling the company’s matters and that it will track those attorneys’ progress through the law firm ranks. The message, said Del Monte Foods Co. General Counsel James Potter, is that firms should tout part-timers as a selling point, not as a dirty secret.
Del Monte is one of a dozen major corporations involved in an initiative to boost the number of women and minorities in top law firm positions by adding part-time and flexible working schedules to the list of things they require of outside counsel. The initiative, spearheaded by the Project for Attorney Retention (PAR) and dubbed the Diversity & Flexibility Connection, seeks to help legal departments and law firms support flexible working schedules and ensure that part-time attorneys — mostly women — have meaningful work and important roles within their firms. The hope is that greater work flexibility and acceptance of part-time schedules will help stem the tide of women and minorities leaving law firms. In turn, greater retention will create a larger pool of women and minorities to promote to partnership.
“Honestly, I was just struck by the fact that I’d been staring at the statistics of women and minority women in partnership positions, and I had never made the connection that the reason those numbers have plateaued is because of career and life balance challenges,” Potter said. “It’s completely logical. You’re never going to fully accomplish diversity without flexible work schedules.”
The legal industry has been wringing its hands for years about the lack of women in top-level positions. Women account for more than 45% of law firm associates but only 19% of partners, according to the National Association for Law Placement (NALP). Women make up more than half of all minority associates, yet only 2% of partners are minority women. The National Law Journal‘s 2009 survey of the nation’s 250 largest firms found similar results, with women making up 45% of associates and 17% of partners. [For more on the NLJ 250 data, see "Bad times could have been worse for women."]
“There is huge leakage. That’s where we are falling short,” said Michele Coleman Mayes, general counsel at Allstate Insurance Co. “It’s not the recruiting of women and minorities that’s the problem; it’s the retention.”
A 2007 study by the Massachusetts Institute of Technology Workplace Center found that one-third of women attorneys leave law firms altogether during their associate years, compared to 20% of male attorneys. That disparity is even larger among partners, with 15% of women partners leaving firm practice, compared to 1% of male partners. More than 60% of the women who left firms cited difficulty integrating their work and family lives, according to the study.
PAR, which is part of the Center for WorkLife Law at the University of California Hastings College of the Law, has long advocated reduced hours as a way for law firms to retain attorneys, particularly women and minorities. But the project’s leadership realized it needed some legal star power to make flexible work schedules a priority throughout the industry.
They approached 12 general counsel and 12 managing partners from corporations and law firms with strong diversity policies and statistics — including Wal-Mart Stores Inc.; Shell Oil Co.; Macy’s Inc.; Sonnenschein Nath & Rosenthal; Morrison & Foerster; and Sidley Austin — and got them together for two all-day meetings. The group discussed the institutional obstacles to part-time schedules, such as the expectation that attorneys be accessible to their clients 24 hours a day and the perception that part-time attorneys aren’t fully devoted to their firms. They also developed a list of best practices to ensure that clients and firms foster alternative work arrangements, including part-time, reduced-hour and flex-time schedules.
Those recommendations address ways that law firms can remove the stigma attached to part-time schedules, that clients can signal to firms that they support flexible work schedules, that legal departments can help firms use part-time attorneys, and that clients can use their influence to ensure that these changes occur.
THE GC’S ROLE
In addition to directing business to firms that take reduced-hours opportunities seriously, general counsel are trying to make the case that law firm attrition costs them money. Teri Plummer McClure, senior vice president at United Parcel Service Inc., told attendees of a PAR conference in late October that her company spends a lot of time helping outside counsel understand its business. When those attorneys leave, new attorneys must be brought up to speed on the company’s dime. “When we have turnover with our outside counsel, it costs us money,” McClure said. “You lose that knowledge base and the experience that comes with long-standing relationships.”
Therefore, legal departments have a financial incentive to help firms retain their attorneys. One way to do that, according to the Diversity & Flexibility Connection, is for general counsel to tell firms that they want to see part-time and flexible work arrangements. That goal should be laid out on paper — as Del Monte does by demanding part-time policies during its request for proposal process — and through day-to-day interactions and conversations with outside counsel. “It starts with communication from the top,” said Wal-Mart General Counsel Jeffrey Gearhart. “We’ve got to tell our firms that this is important to us. But this isn’t just about us saying to our firms, ‘You’ve got to do this.’ We have to do some things as well to make sure this works.”
A list of best practices created for the initiative call upon legal departments to emphasize that outside counsel are not expected to be available every hour of every day. In-house counsel can send that message by substituting teleconferences for in-person meetings when appropriate and avoiding the so-called 5 p.m. Friday work dump, which leads to work-filled weekends for outside counsel. “Do not treat outside counsel as indentured servants,” said Accenture Ltd. General Counsel Douglas Scrivner, recounting advice he gives to his legal department.
PAR recommends that legal departments offer specific deadlines to outside counsel to discourage attorneys from treating every matter as urgent — a mindset that makes work/life balance especially difficult.
Another key component of the initiative is for legal departments to refer work directly to attorneys on part-time schedules. Being a relationship partner with a major client will help boost the profile of that part-time attorney, who can serve as a role model to others at their firm. “You want to make someone influential at our firm? Put your hand on their shoulder,” Schiff Hardin Chairman Robert Riley said to general counsel during the PAR conference. “We need the help of clients to get this done.”
The project is developing a pilot program through which participating legal departments will refer work directly to part-time or reduced-hours attorneys at firms. Some companies, including Wal-Mart, are already moving forward with similar plans. The retailer informed its outside counsel in November that flexible work schedules will soon be included in the diversity statistics the company monitors. Next year, Wal-Mart will require firms to include an attorney on a flexible schedule in the pool of five lawyers from which the company selects its relationship partner. Wal-Mart already requires that that pool include at least one minority and one woman, which has helped the company diversify its stable of relationship partners.
“Being a relationship partner is a powerful position,” Gearhart said. “In most cases, they control the work. It comes with a lot of responsibility and a lot of rewards, and having a flex-time lawyer in that position sends a strong message that to the firm that there is a business case for [alternative schedules].”
On the last Thursday in October, 85 people convened in a glass-walled conference center on the 12th floor of Dickstein Shapiro’s Washington headquarters for the Diversity & Flexibility Connection Conference. The group included a hefty contingent of general counsel and law firm managing partners, as well as diversity chairs and hiring partners. They had come from across the country to spend the day discussing solutions to the lack of part-time and flex-time lawyers, but the conversation kept circling back to what many considered to be the root of the problem: the stigma associated with reduced-hours schedules.
Nearly every major law firm has a policy allowing part-time and flexible work schedules, but relatively few attorneys exercise that option. Approximately 5.6% of lawyers work part-time, up slightly from 3.9% in 2004, according to NALP. Of the attorneys now working part time, 74% are women. “There is a false belief that, if you are able to work 2,000-plus hours, that’s proof of your devotion to the organization,” Mayes said.
Law firms must address the stigma of part-time schedules and alter the way those work arrangements are perceived in order to make them a more attractive option, leaders of the Diversity & Flexibility Connection concluded. They drew up an extensive list of things law firms should do to prevent the marginalization of part-time attorneys. Their recommendations include making sure that attorneys understand they have the option to work reduced hours, promoting part-time attorneys to partnership and other leadership positions, ensuring that they receive proportional pay and bonuses, and designating a reduced-hours coordinator who can monitor those work arrangements. Additionally, firms should track attrition among diverse and part-time attorneys and hold practice group leaders accountable for patterns of losses.
Changing long-standing attitudes toward part-time schedules won’t happen overnight, several law firm leaders said. Keith Wetmore, chairman at Morrison & Foerster, said some partners at his firm prefer he focus strictly on business and not on issues such as flexible work schedules. But the legal industry can’t afford not to tackle the lack of women and minorities at the top, he said.
“The consequences of not having expressed flexible work policies and not being fully committed to this is underestimated by law firm management,” Wetmore said during the conference, pointing out that all the managing partners in attendance were white men.
Disclosure was one of the most difficult issues for the Diversity & Flexibility Connection participants to address. Some law firms instruct attorneys not to reveal to clients that they work a reduced-hours schedule, while some clients require law firms to disclose that information. PAR recommends that firms allow individual attorneys to make that call, but several general counsel insisted that part-time arrangements should be discussed openly.
“If you are trying to change the rules, you have to have more transparency,” Mayes said. “I don’t know how you change something without talking about it.”
E.I. de Nemours du Pont and Co. General Counsel Thomas Sager said his company wants to know when outside counsel are working part-time.
“Transparency to me is key, and it’s critical for the firms to accept that,” Sager said. “We’ve got to attack this issue of stigma.”
Elliott Portnoy, chairman of Sonnenschein Nath & Rosenthal, said his firm is open with longtime clients about attorneys on flexible work schedules. However, broaching that subject with new clients can be tricky, he said.
It also can be a struggle for individual attorneys to decide whether to reveal their part-time schedules to clients. One female partner at a national firm was willing to discuss her 1,600 annual billable-hour schedule but didn’t want her name used because clients and peers don’t know about the arrangement. She feared that disclosure would hurt her practice, which she is trying to build.
TURNING GOALS INTO REALITY
The Diversity & Flexibility Connection is loosely modeled after the Call to Action — a pledge signed five years ago by general counsel from some of the country’s largest corporations vowing to make diversity a major consideration in their selection of outside counsel.
Despite that effort, diversity progress has been underwhelming. The founders of the Call to Action recently formed a new group to help legal departments and law firms follow though with their stated diversity goals. Many of the same general counsel involved with the Call to Action are also part of the Diversity & Flexibility Connection, and they have learned some lessons from the missteps of the earlier diversity effort. Namely, they are bringing the top brass from legal departments and law firms together from the start to ensure that both sides make changes to support part-time attorney schedules. “Law firms are competitors, but we were all in the same room discussing this issue, and that’s a rarity,” Mayes said.
Second, leaders of the initiative developed best practices that law firms and legal departments can follow to reach their goal, as opposed to articulating goals without a plan for implementation. “One of the fundamental positions with PAR is that they are talking about policies and practices for corporations and for firms,” Potter said. “They are really focused on changing behavior.”
To ensure meaningful changes, however, general counsel must be willing to remove business from firms that don’t make progress on their acceptance of part-time schedules and their retention of women and minorities. Not only that, general counsel need to be blunt about the fact that they have dropped firms that didn’t improve in those areas, according to the initiative’s best practices. Potter said that he has been discreet in the past when Del Monte took business away from firms that did not improve their diversity, but he now believes that silence was counterproductive. “I think it’s important to tell these stories, to make people understand we are serious,” he said.
Although the legal industry is beginning to grasp that work flexibility is good for law firm retention and diversity, those behind the Diversity & Flexibility Connection say they don’t expect an overnight sea change. Instead, they hope to create a relatively small group of success stories that will spur a wider embrace of part-time and flex-time attorney schedules.
“It’s hard to get people to change their way of thinking,” Gearhart said. “Some of the problem is inertia. Law firms are still predominately controlled by white males who, in a lot of cases, want to maintain the status quo, which is the idea that value is equated by the number of hours you work.”
Now that the groundwork for the initiative has been laid, each of the 12 general counsel involved plan to ask one or two of their counterparts at other companies to join the effort and push their outside counsel to make part-time a real option and improve the retention of women and minorities. “We’ve got to take a hard look at whether we can do better to address these issues,” said Riley, the chairman of Schiff Hardin. “We’ve got to make it a harder rational decision for an attorney to say, “I’m going to leave my law firm and do something else.”
Karen Sloan can be contacted at email@example.com.