Diversity Nudges

Volume 3 • Issue 2 • January/February 2017
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The Allocation of Work

Innovative nudges from the field

A key part of any job is the work that you are assigned—your day-to-day responsibilities. For corporate law firm associates, this has historically meant having work assigned to you by partners at the firm. As one might expect, and as any practicing lawyer knows, this puts a premium on developing relationships with partners—particularly those doing the most interesting and cutting-edge work. Derek Davis, a longtime corporate law partner and the executive director of the Harvard Law School Center on the Legal Profession, explains:

When I was coming up through various corporate law firms, it was vital to develop deep and meaningful relationships with the partners as they were the ones who were providing you with your work. And partners wanted the best associates to do their work.

Because this setup puts such a high premium on developing relationships between associates and the partners allocating the work, there is an implicit bias toward those associates who can most easily establish those relationships (and therein get the work). Davis, a minority lawyer who advanced to partnerships at three major corporate law firms, stresses:

In developing relationships with the partners, most of it, certainly, came down to your skills as a lawyer—of knowing your craft. However, we would be kidding ourselves if we thought that’s all that is at play in how relationships are developed—and therein how work is allocated. Golfing. Watching sports. Creating personal connections over shared interests. These mattered, too.

Bas Boris Visser, a partner and the global head of innovation and business change at the Magic Circle firm Clifford Chance, echoes Davis’s comments. “The traditional way that law firms work,” Visser explains, “is that a partner more or less chooses which associates he or she wants to work with. An associate’s talent and abilities are critical and the key selection criteria, but unintentionally, people are sometimes drawn to those they think they can work the easiest with—those who studied in the same university, are into the same sports, have the same kinds of interests.”

“Recruitment is part one of the story. But it’s a trilogy. It’s also about retention and promotion,” says Harvard Law School’s Derek Davis.

The implicit problem of allocating work in this way, however, is that it risks creating a segment of associates left behind—possibly for reasons having nothing to do with their technical abilities as lawyers. “If you’re a high quality lawyer and are lucky enough to be in a category that partners easily relate to—I’m generalizing here, but it’s not a stretch to say that the majority of today’s partners are middle-aged and somewhat extroverted white men—you might have it made,” Visser notes. “But let’s say partners find it more difficult to relate to you for whatever reason. Then it may be more difficult to be in that first group of people who get quickly elected to work on the most interesting jobs by the partners.”

Davis echoes Visser’s sentiment:

Partners often see themselves in the associates they assign work to. That means if you didn’t share similar characteristics or interests, it was that much harder to build relationships of trust. There was nothing actively malicious about it, but we can’t deny that it was occurring.

The point Visser and Davis are making is that, even if law firms hire a diverse population of associates, there is nevertheless still a need to ensure that these young lawyers have the opportunities to excel once they reach the firm—which is hard given the relative racial and gender homogeneity of the partnership ranks. A 2016 National Association for Law Placement (NALP) study reveals that while some progress has been made on hiring diverse associates, these gains have not been matched with similar numbers in partnership levels. For instance, according to the NALP sample, women represent only 22 percent of all partners, despite representing 45 percent of all associates. With respect to minorities, only 8 percent of partners are minorities despite the fact that nearly 23 percent of associates are minorities. On a more granular level, minority women make up just under 3 percent of partners, despite representing almost 12.5 percent of associates. Putting this together, on average, more than 78 percent of partners in the NALP study are men and more than 92 percent are nonminorities. Davis notes, “Recruitment is part one of the story. But it’s a trilogy. It’s also about retention and promotion.”

Bas Boris Visser

These numbers clearly reveal that while there is somewhat more diversity within the associate ranks, there remains much less diversity in the partnership ranks. Therefore, if the system that allocates associates’ work acts to funnel work to a specific segment of the population, and to a particular type of associate—however unintentionally—this creates the potential for downstream problems, with both respect to overall firm efficiency and time management as well as firm diversity and the advancement opportunities for diverse young lawyers, as the numbers confirm.

One should stress that this is not simply a story of gender or race—though those are certainly key areas of concern as firms often see the highest attrition rates in women and minority associates. It also includes diversity in terms of work styles (introverted versus extroverted), national origin, socioeconomic background, and other factors that make it harder for partners to forge relationships.

The question becomes how to break this loop—how do firms ensure that work is allocated fairly? Visser notes that with Clifford Chance, it started with an acknowledgement that achieving that goal would require mitigating unconscious biases. “Because we’re all convinced that a more diverse group of people working on a matter will increase the quality of it.”

An institutional nudge

How do firms ensure that work is allocated fairly?

For Clifford Chance, the innovation, developed by the HR team headed by partner Laura King, includes putting an intermediary between the associates and the partners whose key role is to act as a more neutral manager of workflows in which objective measures dictate work assignments. (Other firms, including Ashurst and CMS Cameron McKenna, have also been experimenting with similar work allocation systems.) The role is called a “resource manager” or a “work allocation manager.” Visser explains how Clifford Chance has been utilizing the position and why it may allow for a more equitable distribution of work among its associates. He says,

The resource manager was introduced to the firm a couple of years ago. The idea was to find a better way of ensuring that the work done by our associates is equally divided among our associates.

In matching associates to particular work (and therein particular partners), resource managers are tasked with asking questions like:

  • What type of work is it?
  • Who has the necessary skills (technical or otherwise) to be an asset to the work?
  • Which associate has time to do the work?
  • Who needs to have more experience in a particular area?
  • Who has worked with the client before?
  • Has the associate worked with the partner before?

These kinds of questions, Visser explains, are all about getting at the “objective elements that you would normally apply to allocating a task to someone.” He adds, “The hope is that this will really help us in allocating the work more equally and as a result further improve opportunities to everybody who came into the door to work. It often also improves the quality of the work of those who are perceived to get the better work as for them this process tends to result in a better balanced workload.”

What does the initiative look like on the ground? In terms of numbers, Clifford Chance currently has around 500 associates (out of approximately 3300 worldwide) whose work is allocated via the resource management system. It is up and running in the firm’s London, New York, India, and Middle East offices. That being said, the program is currently not in place across the whole firm. The resource managers themselves tend to come from backgrounds within the professional services environment, including some nonpracticing lawyers, as well as professional project managers, legal support managers, document production managers and business managers.

For this to work properly, Visser stresses, resource managers need to have strong relationships with the associates and the partners. “The only way for the resource manager to function properly is if there is a basis of trust on both sides: the partners and the associates.” On the associate side, each resource manager maintains close relationships with a specific cohort of associates, typically around 50 to 60. Associates need to be able to speak openly with resource managers about how busy they really are, the type of work they have/haven’t been exposed to, what their interests are, and a whole host of other professional matters. On the partner side, the resource managers need to develop close relationships, as partners need to be comfortable that they are going to do the right thing. Davis notes, “Partners like to be in control, so anytime you take that away from them, they worry. At the same time, however, if you can illustrate to them the value you and the system add, most partners will be open to that.”

Diversity in the pipeline

Clifford Chance is also attempting to create more diversity, particularly along socioeconomic lines, in its ranks during the recruitment process with “school blind” hiring (redacting the names of the universities recruits attended). “The overall objective is to make sure we never lose out on talent, wherever it comes from,” says Laura Yeates, head of graduate talent at Clifford Chance. “We need to make sure we have the very best people spread out across the whole of the United Kingdom in terms of institutions.” Echoing that statement, a firm manager told the Independent, “We’re looking for the gems, and they’re not all in the jeweler’s shop.”

The firm has also implemented a Contextual Recruitment System (CRS) developed by Rare, a diversity recruitment group, which the firm hopes will enable it to find candidates “by considering grades in the context of a candidate’s schooling and background.” Since adopting the CRS, the firm reports that it now employs more candidates from disadvantaged backgrounds, and in recent years the intake of black and ethnic minority candidates has averaged more than 40 percent. Other diversity recruitment initiatives include a commitment to provide 60 weeklong “experience” camps for individuals from less privileged backgrounds, which includes participating in business challenges, meeting with lawyers, taking part in mock interviews, and networking.

High marks from partners, associates, and clients

What have the effects on firm diversity been? On the one hand, the program is still in its infancy and many of the most important impacts may not be seen for a number of years, particularly around how many diverse associates who participate in the program advance to partnership. That being said, there is initial evidence that it is well liked among partners, associates, and even clients.

With respect to partners, Visser notes that many partners were initially skeptical—after all, one of the structural tenets of law firms has traditionally been the notion that partners know best whom to work on their cases. However, over time, partners working under the scheme began to recognize, Visser explains, the benefits of a better distribution of workload among the associates became clear. “It is in their interest to have a larger group of associates available for their deals who have workflows that allow them to dedicate quality time to their work,” he says. Indeed, Visser comments that partners in offices that have yet to implement the work allocation scheme are “calling the partners in the offices where they have it and are being talked into it. There’s a huge interest.”

Associates are also benefiting. For instance, because in theory the system promotes more equal work distribution, it also promotes better professional development and work/life integration. And there is evidence that associates are feeling these effects. According to Visser, the firm surveys its people every 18 months to assess overall lawyer and employee engagement, noting that there have been significant increases in associates engaged in the new work allocation scheme over the past few years.

Finally, there are benefits to clients. On one level, clients gain as they have people who have the time to put in the careful attention that is often required. Davis notes, “Clients like lawyers who have time for them. Any system that promotes attentiveness and quality will be welcomed.” Therefore, any system in which clients are getting more for less is inevitably going to be positive for them. On a deeper level, clients are at the forefront of demanding more diverse teams from their outside law firms—so long as it does not impact quality. Research shows (see “From the Journals”) that while clients are demanding more diversity from their outside law firms, this demand is often second order, meaning that things like cost, relationships, and quality are often privileged when it comes to hiring their lawyers.  Therefore, to the extent a revamped work allocation system promotes both quality and diversity, it is a client win-win.

Time will tell whether such a system fully accomplishes its goal of ensuring more equitable associate workloads (and training), and therein prompting firm diversity as a broader set of associates are able to form the relationships with partners and clients necessary for promotion.

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Diversity Nudges Volume 3 • Issue 2 • January/February 2017

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