Women as Lawyers and Leaders

Volume 1 • Issue 4 • May 2015
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Women and Professional Development

The benefits of prioritizing retention and engagement

Professional development, once relatively unorganized at law firms, is becoming increasingly common.

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Carrie Fletcher

“All of this is new in the last decade and becoming quite commonplace,” says Carrie Fletcher, executive director of Harvard Law School’s Executive Education program. “It wasn’t happening 10 years ago because we didn’t think about leadership development, people development, and people management as skills that were critical to the success of lawyers and law firms. I think now we know that they are critical skills.”

During the 1980s and 90s, as firms grew rapidly, they shifted from an apprenticeship model to a leveraged model of talent development, says Scott Westfahl, faculty director of the Executive Education program and former head of professional development at the consulting firm McKinsey & Company. As a result, training has sometimes gotten lost in the shuffle.

Together, Westfahl and Fletcher run Harvard Law School’s Executive Education program, which offers training to attorneys across the career spectrum.

“Some of what we’re aiming to recover with a robust professional development structure in a firm is a culture of learning and development that happened organically in the past through one-on-one mentorship,” Fletcher says. “It’s a little bit of coming full circle in a very different way in much larger and much more complex organizations than those of us who came into the field 20 or more years ago had.”

Westfahl is the faculty director of HLS Executive Education.

Westfahl is the faculty director of HLS Executive Education.

Below, we explore ideas from Harvard faculty and other experts on professional development and reducing attrition for women and minorities in the law. (See 15 Tips for Women in the Profession for thoughts on navigating the legal profession as an attorney.)

Making time for development

While training, development, and benefits like flexible work arrangements are becoming increasingly common, there are still barriers to implementing them. A billable-hour structure creates short-term incentives that are often directly opposed to the long-term interest of firms. “One of the most difficult things, especially for younger partners—but often even more senior law firm partners—is to have confidence in the value they provide,” Westfahl notes. “Lawyers sometimes undervalue themselves and the services they provide, and the lack of confidence with their clients spills over into lack of organizational maturity and confidence to plan for the long run and to invest in the long run, rather than treat every client and potential-client situation with extreme urgency.”

Other professional services work on different models. Investment bankers take percentages rather than work by the hour, for example, and McKinsey bills on a project basis—“very confidently asking for a lot of money for their work,” Westfahl says. “I don’t want to overstate it, but there is a big gap between lawyers’ confidence and the rest of the professional services market,” particularly when it comes to long term investment in leadership development, especially talent pipeline development. “The amount of investment that law firms make in talent development is so much smaller than consulting and accounting firms.”

The ongoing “business-ification” of law presents cost pressures for firms, notes Erin Walczewski (HLS ’10), a professional development manager at Cooley in Boston. Yet, she says, “look at some place like Deloitte. The number of resources dedicated to talent management and talent development there are really significant. It’s sort of beyond question in really top-performing companies that you have to put significant resources into people-development management and retention. In law firms they’re not quite there yet.”

“The amount of investment that law firms make in talent development is so much smaller than consulting and accounting firms,” says Harvard Law School’s Westfahl.

Flexibility, training, and development seem to cut into the bottom line because they don’t generate revenue. “But how do you measure the corresponding benefit of having associates engage successfully, being high-performing, not leaving your organization?” Walczewski asks. “Those are different sets of measures that I think law firms are not fully equipped yet to do. In some ways, you could say if they were to act more like some of the larger businesses, they would actually spend more money or time and be more accepting of their major investments in people.”

Focus on retention

Law firms have a vested interest in increasing the number of women associates and partners within their ranks. “Diverse teams outperform other teams,” Westfahl says, “and research in the business world consistently shows that the more women you have in your leadership, the better your organization performs.” As the consumer market shifts, clients also increasingly seek to work with such teams.

Joan Williams, director of the Center for WorkLife Law at UC Hastings, notes that family-friendly employment policies decrease costs associated with attrition, absenteeism, recruiting, quality control, and productivity. Retention will increasingly become an issue as millennials move into the workplace, since the labor force is projected to drop 25 percent as a result of the generation’s lower birth rates. Law firms will need to adjust if they wish to retain the highest-quality talent.

Yet women leave law firms at higher rates than men—and for women of color, attrition is even more pronounced. One reason is the long road to partnership. As firms shifted to a leveraged model in the 1980s, Westfahl says, the criteria for election to partnership became more difficult, while the length of time required to become a partner in many firms extended from six years to 10 to 12 years for full-equity partnership. For firms with two-tier partnership systems, nonequity partners are typically elected to equity partner in the 12- to 14-year range.

“Those numbers are significant,” Westfahl says, “because what I observed—at least in my early days of practice—is that the women senior associates for whom I was working as a junior associate would become elected to the partnership at 30, 31, or 32 years old and have a base of security from which to begin their families. And they often did. When that lengthens to 12 years, it extends the time to partnership through all of the key childbearing years and effectively forces more difficult choices earlier on within organizations that have not adapted a longer-term and a more flexible view of career paths, in the way many in the business world have done.”

That’s a factor in why women and men are increasingly moving to in-house positions, says Veta Richardson, the president and CEO of the Association of Corporate Counsel (ACC). “What we hear is that the majority of people who move in-house, whether male or female, do so believing that the work-life balance in-house will be better than the sectors that they came from, whether those sectors are largely private law firms or government service.”

Respondents to a recent ACC survey of chief legal officers and general counsel said long-standing benefits found in the corporate world were helpful, such as telecommunicating; flexible, reduced, or part-time work schedules; paid maternity or paternity leave; and child care vouchers paid for with pre-tax dollars. About 90 percent of those surveyed used telecommuting and flex schedules. Says Richardson: “In-house counsel are generally a pretty happy lot in terms of the choices they’ve made.”

Finding balance

“The myth of the meritocracy continues to drive law firm promotional decisions with all sorts of implicit bias, one bias being that if you haven’t been full-time the whole time, then you’re not really in it to win it,” says Harvard’s Westfahl.

Westfahl also points to Deloitte as an example. (For more on how accounting firms are approaching retention and flexibility, see “Retaining Talented Women.”) The consulting firm—which appointed its first woman CEO, Cathy Engelbert, in February—has long been known as a workplace innovator. Deloitte has a “system that employees are able to dial up and dial down—that’s their language—their relative contributions and, in a very structured way, allows for people to adjust their time commitment to the workplace, according to their other needs, without stigmatization or penalty.”

“Now, most law firms will say, ‘Of course we have flex-work policies, and we have examples of women who have been elected to partnership while on a part-time program,’” Westfahl says. “Women law firm associates hear that, but the examples are few, and there’s usually extraordinary circumstances or extraordinary individuals involved. And no matter what, there’s still a feeling that explaining to the firm that you don’t want to work full time is a message that you’re not as committed to the firm as others.”

Some might object that professional services firms have much larger workforces, so it’s easier for them to fill in roles where necessary. But “law firms work around staffing issues all the time,” Westfahl says—it’s just that flexibility isn’t prioritized in that process. “It’s not signaled to associates that you have the right to ask for this without penalty—and, actually, we want you to do that, because we have a longer-term interest in retaining you and the skills and abilities and diverse perspective that you offer our organization. The myth of the meritocracy continues to drive law firm promotional decisions with all sorts of implicit bias, one bias being that if you haven’t been full-time the whole time, then you’re not really in it to win it.”

Indeed, he says, “much larger organizations moved beyond the apprenticeship model decades ago, have done a very good job of it, and are paying a lot more attention to improving structures and systems and monitoring them closely to help the advancement of women within their organizations.” If organizations as large as Deloitte, Ernst & Young, or McKinsey can do it, he asks, “then certainly law firms should have hope, right?”

Countering common stereotypes

Even the best-intentioned programs can be derailed by stereotypes and assumptions. For example, the nurturing childcare role is often seen as incompatible with the workplace, particularly in fast-paced professions. Evidence suggests the quality of women’s work assignments decreases after pregnancy and childbirth in comparison to those of childless women and men; work evaluations, too, are less positive.

However, the reality may be the reverse. “When you have to get home and pick up your kids at 6, you tend to be really efficient,” says Nancy Gertner, a retired federal judge who now teaches at Harvard Law School. Men, meanwhile, are often seen as more competent and given a larger workload after the birth of a child—at exactly the time they most need to take part in their new families. Firms and employers should be mindful of these stereotypes and actively work to counter them.

Client service actually improves with such policies, Westfahl says. “There’s a culture, the law firm culture, of clients above everything, and client service above everything. It seems at first blush to be at odds with a less than 100 percent commitment, so people struggle with that. They don’t know how to take a longer-term view to reconcile it and say, ‘Our client service will improve if we create space and room for these very talented people with diverse perspectives to stay within the organization and help us solve complex problems more effectively.’”

Below, we present ideas from Fletcher, Westfahl, and other experts on how law firms can improve professional development, better retain women and minorities, and adjust to the reality of working families’ lives.

1.  Invest long term.

Investing in relationships with associates can have long-term payoffs, Fletcher says. She suggests setting aside time for associate development. “One of the most difficult things for any lawyer to do in the modern world of large laws firms is to reflect on anything at all because you’re working so hard,” she says. Doing so can help associates become clearer about their own career goals and the strategies they’ll use to achieve them—a focus that will benefit the firm.

For example, each year Milbank sends their third- through sixth-year associates to the Executive Education program for intensive, weeklong workshops focusing on business development, leadership, and legal skills. The program “represents an enormous long-term investment in building lawyers who are much more capable partners and leaders,” Fletcher says. “They get so energized at the end, so grateful for that learning and reflection time. That can significantly change people’s perception of their value, help them build stronger internal networks, and help them feel valued by the organization.”

 

The investment can have long-term benefits for firms, she says, because even if associates opt to leave, “they’re a lot more loyal than they would have been.” McKinsey partly runs its business model based on such loyalty, she points out, since alumni often send work back to the firm.

2.  Establish intermediaries to manage flexible work arrangements—and set them up for success.

Fletcher managed the firm’s flex-time program while at Goodwin Procter, acting as an intermediary between associates moving to a new schedule and the partners at the firm. She says developing a detailed, realistic plan is the first step to success in these programs.

“It involved pretty candid discussions with me with whoever was interested in flex-time,” she says. “What were the barriers, what were the issues in their particular department? You know, if your department has a weekly meeting on Tuesday, you shouldn’t pick Tuesday as the day not to go to work. That sounds really obvious, but literally down to that level of granularity in terms of thinking about where might this go wrong. How do we set it up before it even starts to be positioned for success?”

Fletcher fielded feedback about flex schedules from partners or supervising attorneys as well as from the associates, which avoided problems on both sides. Associates didn’t feel defensive about their schedule, and partners were able to communicate openly. Meanwhile, she says, it’s essential to address performance separately from scheduling to avoid conflating the two. “When you try to roll out a flex-time program and you don’t have any sort of engaged advocate, monitoring, or oversight role, a lot of dots get connected that ought not be connected. So people will make assumptions because of the flexible work schedule that might have nothing to do with flexible work schedules. It’s not a critique, necessarily, but an assumption that’s easy to make.”

3.  Rotate leadership positions.

Leadership development opportunities come up rarely in law firms, Westfahl says. “Law firms are often much slower to rotate leadership positions than other professional services firms. A practice leader or department head might be in the same role for many, many years, and to replace the person is stigmatizing and challenging, because there’s not an agreed-upon norm for how long one should be in a leadership role.”

Yet without chances to demonstrate leadership, women won’t develop necessary skills for advancement. “Within McKinsey,” he says, “I saw a norm of four to six years in a leadership position, and then it would be rotated. When it then rotates, nobody questions why that person is being replaced. It’s sort of in the natural flow of things that this is what happens.”

He suggests a five- to seven-year term. “That ensures you have a long enough tenure to make a difference, but a short-enough tenure that you don’t burn out. You’re infusing the organization with new ideas, energy, and you’re building a bigger bench strength of potential very senior leaders.”

That also allows women to move into leadership positions earlier. It’s an issue that “gets missed a lot in the discussions about why women are underrepresented in the leadership of firms,” Westfahl notes.

4.  Focus on consistent internal communication.

Law firms often “think that they’re doing everything right, and yet for some reason, they don’t understand why they are not able to recruit and retain their women and minority and openly LGBT lawyers,” says Sandra Yamate, the CEO of the Institute for Inclusion in the Legal Profession, which consults with law firms on diversity programs.

The solution is often simpler than firms realize. In its research, the institute has found that firms often don’t communicate their own values very well internally. The best strategy, she says: “Communication of the firm’s message that they want to make sure all their lawyers recognize how valued and appreciated they are.”

Sandra Yamate

Sandra Yamate

“Not every incident is going to rise to a level that it’s legally actionable, but sometimes if situations are allowed to persist for too long, somebody may feel a sense of disenfranchisement or hostility that’s not really the firm’s intention at all,” she explains. Yamate cites an example of a firm that had a senior ombudsperson associates could consult without ramifications—a program it was rightfully proud of. Yet the firm was surprised to learn how many lawyers didn’t even know it existed or didn’t know how to take advantage of it.

Walczewski echoes the sentiment. “It’s not enough just to value women attorneys. You also have to communicate to women attorneys that they’re valued so they have a sense of motivation to stay,” she says.

5.  Make simple changes for big payoffs.

Joan Williams, director of the Center for WorkLife Law at UC Hastings, proposes the concept of “bias interruption” in a recent article for Harvard Business Review. Simple changes can often help structure processes to help women and minorities feel more comfortable—often without any explanation at all—which interrupts unconscious bias and avoids “diversity fatigue.”

For example, Walczewski suggests prohibiting phone calls between 5 and 8 p.m. “For attorneys who have children at home, having control over that particular window makes a huge difference in their quality of life,” she says. Attorneys don’t necessarily need fewer hours, she says. They want more time with their families. But many would be happy to go back to work after the kids have gone to sleep.

Williams also suggests making reasons for time-off requests private firm-wide. When no reason is necessary, common stereotypes associated with child care for both women and men can be avoided.

6.  Help parents coming back from parental leave.

Women, and increasingly men, who return from parental leave may need time to “ramp up” as they adjust to new family responsibilities. “A lot of firms are doing either presumed or optional ramping up when you come back from leave,” Fletcher says. An attorney might return at 60 percent time for a month, then move up to 80 percent, then return to full time. “Easing those transitions makes a huge difference. I think firms engender a lot of appreciation and engagement for doing something like that, because it’s an acknowledgement that there are a lot of women who want to do both of these things—parent and practice law. There is a transition period where you try to figure out how to do that.”

Not everyone is suited to being out for a long period of time, so returns should be flexible. “I have friends who came back early because they just were not cut out for being at home with a baby,” she notes. “They would only be six weeks into a four-month leave and say, ‘You know what? I can’t do this. I have to come back to the office.’ So everybody’s not the same, but I think things like flexible returns acknowledge that everybody’s not the same.”

The OnRamp Fellowship helps those who’ve been out of the profession for an extended period return. The one-year paid program matches firms with skilled attorneys; Cooley is a participating firm, among others. “It’s essentially a one-year job interview,” Walczewski says. “It’s one of the most tangible things I’ve seen come out of the last five or 10 years or so to recognize the difference in pace and that leaving the full-time workforce to go either part-time or to take time off doesn’t have to mean the end of a career. There should be methods for really talented attorneys to come back into the profession.”

7.  Consider new models for promotion that incorporate flexible options.

With a long road to partnership, a “fast-lane-only,” up-or-out model may no longer be appropriate for associates. Yet research has shown leaves of absence among both men and women are often penalized, whether unconsciously or directly, in subsequent promotions and salary increases. To resolve this problem, consider decoupling promotion and salary from speed and instead basing advancement on cumulative time or competency.

In creating such plans, firms should be mindful of the negative stereotypes associated with parenting in the workplace. Employees may assume parental-leave programs are a form of special treatment, rather than a prerequisite of an equitable workplace. To help counter this impression, work-life flexibility and parental-leave programs should be broadly conceived and extended to all employees. Consider making them mandatory, not optional, to avoid the stigma often attached to using them.

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Women as Lawyers and Leaders Volume 1 • Issue 4 • May 2015

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