Lemming Law (July 2007)

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LEMMING LAW

Issue # 49

July 2007
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One of the great ironies of law firm life is that, despite the well-known difficulty of "herding cats," and the fierce insistence on individuality, the culture places enormous emphasis on conformity. Over the past decade during which I've been working with attorneys and their firms, I've witnessed increasing pressure on lawyers to fit a specific mold. Gone are the days of "minders," "finders" and "grinders." In fact, many of the equity partners who seek coaching do so because, after years of relatively comfortable careers as "service partners," their job security suddenly vanished under escalating demands to bring in new business.

Resisting the Pressure To Work Longer and Harder Is Difficult

Similarly, the recent increase in associate salaries subsequently boosted billable-hours targets. Even in firms with ostensibly non-stigmatized reduced-hours policies, resisting the pressure to work longer and harder is difficult. Caught up in the crowd of lemmings madly racing toward the cliff, it's almost impossible to be the lone lawyer who turns back, insisting that this kind of stress and overwork is not the road she chooses to take. At the same time, we hear mounting rhetoric from law firms about the value of diversity. Typically the term "diversity" refers to the representation of minority groups among the firm's attorneys: women, attorneys of color, and gay, lesbian and transgender lawyers.

We Need To Distinguish "Diversity" From "Representation"

However, diversity consultant R. Roosevelt Thomas Jr. makes an important distinction between representation and diversity: "Representation will refer to the presence of multiple races and both genders in the workplace, while diversity will refer to the behavioral differences, similarities, and tensions that can exist among people when representation has been achieved."[1] This is a distinction most law firms fail to make. They think they're talking about diversity, but they're really talking about representation. Witness this conversation I had not long ago with the diversity director of a large corporation in which she confided her frustration with outside counsel. "They ask me how many [women, attorneys of color] do we really have to have in order to get and keep your business? I don't know what else to do to help them ‘get it.' "

Understand True Diversity, Not "Color-Blind" Diversity By The Numbers

The most significant problem with "diversity" defined by the numbers according to Mr. Thomas, "...is that its color-blind, gender-blind ideal is to some degree built on the implicit assumption that ‘we are all the same' or ‘we aspire to being all the same.' Under this paradigm, it is not desirable for diversification of the workforce to influence the organization's work or culture." The firm "...should operate as if every person were of the same race, gender and nationality."[2]

Many minority attorneys find relief in finally being treated as though their gender, race or sexual orientation is irrelevant to their work. I do not doubt the sincerity of firm partners who say, "As long as they do the work, I don't care if they're women or Hispanic or gay." What these attorneys fail to recognize is that unexamined bias persists despite conscious rejection of discriminatory beliefs. All one need do is to log onto Project Implicit https://implicit.harvard.edu/implicit/ and complete the assessment of implicit bias. I have yet to meet anyone, myself included, who comes out "clean."

We Perpetuate Bias and the Status Quo Without Realizing It

Automatic processes allow us to go through our days without having to spend energy deciding which pant leg to put on first or whether to turn left or right at the intersection through which we drive on our daily commute to work. Only a small part of our brains is devoted to conscious, intentional behavior and like a muscle, this part tires quickly from use.

Most days you're using the intentional part of your brain for decisions like trial strategy. Meanwhile, your automatic brain processes may be averting your eyes each time you pass an attorney of color in the halls or assuming the woman associate who just returned from maternity leave is racing to get home to her baby at 3:00 P.M. when she is, in fact, on her way to a client meeting. Unless your conscious, intentional brain processes are focused on becoming aware of these assumptions and behaviors, you will continue to unwittingly engage in them.

As you examine the attrition statistics of women and attorneys of color from your firms, you're likely to tell yourself the women would have left anyway now that they have children or that exceptions were made in the hiring of attorneys of color which should not have been made because obviously, they were not capable of producing high quality work. You will remain ignorant of the ways in which behavior directed by your automatic brain actually pushed these attorneys out the door.

Lawyers Demanding Work-Life Balance Are Driving a New Definition Of Diversity

In this way, automatic thinking prevents law firms from recognizing the diversity that already exists. True diversity involves not only diversification of attorneys, but openness to diversification of the work of the firm itself: work practices, business practices, firm culture, strategy and mission. Effective managers of diversity understand and value the diversity of opinions, insights and approaches to work brought by a diverse workforce. This includes a recognition of the fact that there is more than one right way to produce positive results.

You may be as stunned as I was, for example, to discover how few law associates - both men and women - aspire to firm partnership. On the one hand, hearing young women say that they have no interest in becoming partners is not surprising, although it is disheartening. So many cannot envision themselves fulfilling multiple roles-even with reduced-hours schedules. And the few women partners with families who do exist often serve as negative role models. That is, younger women view these pioneers as having sacrificed their personal lives in an effort to fit in and be "more like the men." When the firm's poster child for work-family balance is a woman partner who has one nanny for each of her three children so that she can bill 2400+ hours and bring in $2 million of business/year, women associates often eschew all aspirations to partnership. Working in a less demanding environment or remaining in the increasingly pink ghetto of "counsel" appear as more desirable alternatives.

This shift in career goals among women associates is of considerable concern to those who hoped to see women gain increasing power. Dominance in firms accrues in proportion to the revenue an attorney brings in. If talented young women perceive this as requiring sacrifices they are unwilling to make, how will gender equity ever be achieved? What truly astounded me, however, is the degree to which male associates express similar sentiments. In general, roughly 1 of every 10 male associates with whom I've spoken in recent months aspires to partnership. Although many doubt they would actually grasp the brass ring if they tried, even more wish to have nothing to do with it. "It's like a pie eating contest where the prize is more pie," they explain. Their decisions are not difficult to understand. After all, how many of you would apply for a job with the following description:

Attorney position available at top firm of 1000 lawyers and offices in eight cities. Should expect to work 70-80 hour weeks, frequently under crisis conditions; to be on call 24/7; to spend most evenings and weekends in the office. During crises, the attorney should expect to continue working at maximum effort despite several consecutive days with 2-3 hours of sleep. Since you will be overpaid, you will be expected to produce high quality work long before you have the training and experience to do so. Although some partners may invest in your success by providing training and mentoring, you may or may not have an opportunity to work with such a partner. Whether or not you succeed will depend as much upon factors outside of your control (the economy, the political capital of your supervisor, the number of partners in your practice group, among others) as on factors you can influence (your legal skills and client relationships.) Advancement is significantly dependent upon your conformity to firm norms. You should expect to work under these conditions for 8-10 years and to receive ambiguous and subjective feedback about the likelihood of advancing to partnership. Once you are promoted to shareholder, you will be expected to bill almost as many hours as you did as an associate. In addition, you are expected to bring in $1 million - $3 million in new business annually. Although this is a high stress job requiring significant personal sacrifice, you will be well compensated. You will be able to send your children to private school but will likely only be able to participate minimally in family life.

We Need To Recognize and Support the Diversity That Already Exists

What these trends indicate to me is that there is more "diversity" in law firms today than many firm managers realize. In consulting with law firms on diversity, particularly the retention and promotion of women, I have been struck by the degree to which management, by focusing only on representation of minority groups, is blind to the diversity already present in the firm-and because of this, what a poor job is being done to effectively manage a complex environment of lawyers, some of whom fit the conformity ideal, many of whom do not.

That management is missing this trend doesn't surprise me. This is a significant challenge since the partnership is likely to be composed of successful "lemming lawyers" while the associates are the source of diversity and these young attorneys are unlikely to confess their intentions to firm managers. As a result, few firm leaders perceive an urgent problem. Most rely on a steady of stream of ambitious white males even if the firm proves unable to retain women and attorneys of color. But imagine for a moment a firm where the only associate who wanted to advance to partnership was the heroic one who billed 3000 hours but had no life outside the firm. What would this mean for the future of the law firm business model?

True Diversity Thrives On Openness

For a firm to achieve genuine diversity, it must encourage openness. Diversity can only be sustained within a culture in which variety - not conformity - is prized. All lawyers must feel valued for their uniqueness and empowered to bring their backgrounds and perspectives to their work. And this is exactly what is NOT happening in most mid-size to large firms.

Imagine a firm where all of the associates who now eschew partnership felt free to express their perspectives and to offer ideas about what would make them want to stay and advance at the firm. These associates would be likely to question the firm's conventional wisdom about how work must be done. After all, most firms have been created by and for white men. Norms, work practices and structures reflect the lives and values of the men who created them. Ideas about competence and the best way to get work done as well as behaviors that are recognized and rewarded reflect masculine ideals. These assumptions appear neutral only because they have existed within firm culture for so long.

Our Very Definition of A Successful Lawyer Is Changing

A firm that welcomes alternatives to long-held assumptions, such as face-time as a valid measure of commitment, may discover more efficient approaches to work. A firm that is open to experience and values besides cold rationality may help improve the emotional intelligence of its attorneys. A firm that challenges the assumption that a good lawyer is someone who worries for his clients 24 hours/day may come to appreciate the increased effectiveness of a lawyer who regularly takes time to completely disengage from work. A firm's willingness to experiment with alternatives to traditional male gender-role approaches to leadership may benefit from the more collaborative and relational approach brought by some of the firm's women.

Given the dramatic changes that might result from welcoming a wide variety of perspectives, it's no wonder that most firm leaders prefer a numbers approach to diversity. They want the result without having to change-and who can blame them? Change is difficult and frightening. Most don't yet see any urgent need for change. But change is occurring, and whether or not it is welcome or planned, it will continue. Younger lawyers are increasingly rejecting the lemming approach to practice. And this is fortunate for the profession, its members and the society upon which it has such great influence.

Notes:

1. R. Roosevelt Thomas Jr.(2006) Diversity Management: An Essential Craft for Leaders. Available at: http://www.leadertoleader.org/knowledgecenter/L2L/summer2006/thomas.html

2. David A. Thomas & Robin J. Ely (1996). Making Differences Matter: A New Paradigm for Managing Diversity. Harvard Business Review, September/October, 79-90.

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