When I graduated from law school, we were sure that we all needed to “pay our dues.” That meant being chained to a desk in gleaming law offices for most of us. We were resigned to our fate, as the old professional adage of attorneys goes, “The Law is a harsh mistress.” We inevitably were going to be sleep-deprived and do a lot of paper-shuffling and eat freeze-dried meals out of microwave ovens every day.
Fees, Fees, and More Fees
The goal of all of the sleepless nights and the microwavable nutrition was to collect more fees – obviously. When I was a mid-level lawyer working for Big Law in Washington, DC, there was a common question going around our fancy, white-shoe office: “How many hours did you bill this month?”
Spoiler alert: The more “billable hours” you billed, the more accolades you received from management of the firm. So being eager to please at first, I found myself sleeping on my office floor at least a couple of times each week, synthetic floor-rug pattern imprinted on my cheek when I woke up. Just so I could “keep billing” as much as possible and keep distractions like the commute home or even brushing my teeth to a minimum (yes, looking back it sounds strange to me, too, but it seemed normal in that place at that time).
We also “staffed up” our projects with multiple lawyers – junior ones, midlevel ones, and senior ones – because big teams of lawyers also meant big legal bills. The firm was incentivized to make as much money as possible. And when your clients were Fortune 500 companies, as ours were, those hefty bills were going to be paid without a problem.
We also had to “bill by the hour.” That was the real between-a-rock-and-a-hard-place issue. That meant in effect accounting for every one-tenth hour increment – what regular mortals would call “every 6 minutes.” Do you know what you’re doing every 6 minutes? Does anyone? Even with a timer running on your computer? It’s practically impossible, not the way the human mind operates when multitasking or even when not. For example, I remember the “do you bill while you’re in the bathroom?” question going around. One of my colleagues was for billing in the bathroom. He urged that one could bill bathroom time: “I’m thinking about the client’s matter, so what does it matter where I do that? That’s valuable time, I do great thinking in there.” I’m sure he did. But I never liked the six-minute billing thing, because it meant that if I wasn’t fully concentrating, I would be potentially short-changing the client by billing that 6 minutes. And if I didn’t bill, I might be short-changing the other lawyers at the law firm. The straight take: This is not a fundamentally accurate billing practice.
It’s also open-ended. How long should a project take? Who knows? The longer the better from the “billable hour” perspective. But in the real world, of course, the shorter the better from a client’s perspective. “You know, it’s hard to say how long this will take” was a refrain heard repeatedly from lawyers who were asked by sweaty-palmed clients what they could expect to see in their invoices at the end of the month. “And it’s also hard to say how many lawyers we’ll need to staff this.” So it could be that you pay for a few lawyers working in tandem, and each billing at a high rate.
Pricing Small- to Mid-Size Businesses Out of Good Lawyering
This means that great lawyering of Big Law Firms is basically unaffordable for a lot of small- to mid-size businesses. The size of the legal bills, the open-ended nature of the bills, the uncertain size of legal teams – all of this is a non-starter for smaller companies on a tight budget. You can’t run a business with a serious business plan and have that kind of open-ended expense seem justifiable.
Burn-Out in the Legal Profession
When I went to law school, we were told that only about one-third of us would stay in the legal profession. The others would start in it, pay off some student debt, and then “burn out.” That meant that they would be unable to either make partner – the brass ring described by some as winning a pie-eating contest where the prize is (you guessed it) more pie – or continue to stomach the grueling hours. We were told that many lawyers have heart attacks by the time they reach their forties.
I remember a heartbreaking evening session with a hard-driving partner I liked to work for. The phone rang at about 8 pm in his office. The partner’s young son was on the other line. The partner said, “I know, Billy. But I can’t come home and be there with you. Daddy has a really important matter for a really important client he’s working on.” The implied message to Billy was clear: You’re my son, and that makes you an unimportant client. I resolved then and there that I would never do the same to my children (though I had no children at the time).
Based on my own experience, I think the billable hour conundrum also has something to do with the burnout: It’s hard to walk a tightrope in which you are not sure you are being quite fair to either your clients or your law firm in the number of hours you bill. That creates stress among attorneys who strive to be honest. I always imagined that being a lawyer was supposed to be fun. But looking around, I didn’t feel that many of my colleagues would use the adjective “fun” to describe their profession.
Reimagining and Reinventing by Doing the Very Opposite
As with most problems, it’s possible to imagine solutions and reinvent the old ways of doing things and thus to actually solve the problems by using Maimonides’s approach in his Mishnah Torah: To do the very opposite of what is problematic, swinging at it were to the opposite pole. Let’s take each of the issues in reverse order.
If there’s a problem with lawyer burnout, create a more humane and indeed human work-life balance by bringing home life back into the lawyers’ lives. Your children and family and loved ones should be highly “important clients.”
If there’s a problem with small- to medium-sized businesses being priced out of the legal services market, then provide bargains: efficient and low-priced solutions for non-Fortune-500 companies. Indeed, as we enter what appears to be a period of either stagflation or deflation, the market itself is ripe for cutting out the “fat”
If there’s a problem with billable hours incentivizing lawyering that increases hours but doesn’t serve the best interests of clients, then change the billing model to a model that rewards fast and efficient work with small rather than large teams (or even no teams at all, just a single lawyer per matter). Bill retainers that cover “up to a certain number of hours” rather than calculating every six minutes of bathroom time. This rewards lawyers for using time wisely and efficiently, in the best interests of clients.
Interestingly, technology and COVID-19 have combined to provide the beginnings of solutions like these already. One of the possibilities of “remote work” is that lawyers can cut the high overhead and bells and whistles that traditional law firms use, trading gleaming and expensive corporate offices for (infinitely cheaper) gleaming computer screens and video conferences. This solves both the high fees issue and the lawyer burnout issue, leaving attorneys to work from wherever they choose including – consistently – home. Even in the corporate context, you can now hire things like fractional general counsel services – where a company can obtain a small fraction of a full-time in-house or “fractional” general counsel – for a small fraction of what outsourced general counsel solutions would cost. Online solutions like Upcounsel, RocketLawyer, and Inside Outside Counsel are the beginning of what promises to be a reinvention of lawyering. And COVID-19 was the push that was needed to reinvent and push the boundaries of what is considered to be a good potential workplace. The Law need not be so harsh a mistress. And the practice of law will benefit as a result.