Atty-Parents Won't See Billable Hour Relief As School Starts

By Jack Karp
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Law360 (September 3, 2020, 1:59 PM EDT) -- Perkins Coie LLP partner Gina LaMonica handles the kids in the morning, when her husband is busiest at work. In the afternoon, she hands off caring for the couple's 9-year-old and 6-year-old daughters and squeezes in some work before taking a break for a family dinner and getting back on the computer at night, sometimes until "easily 2 a.m.," she said.

LaMonica is used to working late — even before the pandemic, she could work till around 10 p.m., she said. But now, with her kids home and requiring attention to attend school remotely, "there's just more time to make up."

"There were chunks of time during my regular workday that I was kind of keeping an eye on my email but mostly engaged in the e-learning," she said of the spring when her kids were being schooled at home, "and then I'd make up that time at night, which is long days."

Many attorneys are working those "long days" trying to maintain their productivity while also caring for kids whose schools have been closed by the pandemic, a balancing act some say could become increasingly tenuous as more schools announce that this academic year will start remotely because of the spike in coronavirus cases across the country.

"Child care is the number one concern right now for anyone with kids because it's just incredibly difficult to school the kids and at the same time manage your matters," said Ru Bhatt, a partner in Major, Lindsey & Africa's associate practice group. And that concern is leading some attorneys to call for firms to relax billable-hour requirements, Bhatt said.

In fact, changing or relaxing those requirements was one of the top suggestions for how law firms can better help attorneys weather the pandemic, according to a survey MLA conducted of associates in May.

But don't expect those billable-hour targets to come down anytime soon, according to legal recruiters and attorneys who spoke with Law360. No firms that they know of have so far relaxed their billable-hour requirements, according to both Bhatt and Summer Eberhard, a managing director in MLA's associate practice group. In fact, MLA's recent survey found that billable-hour targets had not changed for 93.5% of respondents since the pandemic began.

"I'm only aware of one firm in the Am Law 200 that has formally reduced attorney billable-hour requirements and that firm did so in connection with reducing attorney pay," said Marion Wilson, a director at Lateral Link.

That hasn't stopped billable-hour requirements from emerging "as a flashpoint for associates," Bhatt said in an announcement when MLA's report was released, adding, "We're seeing a strong desire from associates to see the billable-hour target changed in light of this pandemic."

It makes sense that that desire is being expressed largely by associates, who are at the age when they tend to have younger children, Eberhard said. Partners, who generally have older children who can better take care of themselves, seem less concerned.

"It's really the corporate associates that are feeling the biggest brunt of the impact of the pandemic," Bhatt said.

That concern is also, perhaps predictably, coming more from female attorneys than male attorneys, said Bhatt, who points out that women were three times as likely as men to be worried about making their billable hours in the MLA survey.

Several BigLaw firms declined to comment or did not respond to requests for comment on their billable-hour policies, though none seem to be planning any changes to those policies.

Those in the legal industry aren't exactly surprised by this.

"That's what they do, associates are hired to bill, right?" Bhatt said.

Chris Batz, president of legal recruiting firm The Lion Group LLC, is more blunt: "If people said they're not able to do the work, I mean, people lose jobs," he said.

So instead of pushing too vocally for changes to billable-hour targets, attorneys are working to find creative ways to stay productive.

"That is getting up early, opening the laptop up after typical work hours, and kind of doing everything they can to stay on top of their work," Eberhard said.

While some attorneys, like LaMonica, are simply putting in more hours, others are relying on help with child care from family. LaMonica said she has a friend who sends her kids to her sister's during the day so she can work. And her firm, Perkins Coie, has rolled out a backup child care program that covers up to 80 days of child care for when usual caregivers are unavailable. The program allows family members to get paid to be those backup caregivers, she said.

As a result, attorneys' overall productivity doesn't seem to have so far been affected by having to also care for children at home, Wilson said.

"Yes, both partners and associates have reported distractions and disruptions in their day-to-day schedules and a fair amount of after-hours work," he said. "But by all accounts, the work is still getting done on time and at the same quality level."

And while firms may not be relaxing productivity requirements, many are providing other support for parents.

Fenwick & West LLP recently announced several programs aimed to help attorneys who are also parents, including discounts on tutoring and a parent support workshop. Reed Smith LLP is providing backup child care and tutoring support to parents. And multiple law firms have recently created affinity and support groups for parents.

"The default expectation right now is that people will require some flexibility in their day," LaMonica said of her firm.

That may be because many partners and clients are also dealing with their own child care issues right now, said Batz, who adds that he constantly hears kids in the background when speaking to candidates on the phone. Even the "grumpy old law partner" whose kids are grown — well, his kids have kids, Batz said.

"It's actually really interesting to hear managing partners and male partners at the firms sort of recognizing what people — women specifically that are bearing the brunt of taking care of their kids at home — are doing at home," said Bhatt.

That understanding only extends so far, however.

"What I am hearing from a lot of attorneys is that … while the firm may be incredibly supportive of parents, there is some pressure in some groups from partners who want their attorneys to be more accessible and be doing more and billing more hours when it's just not a possibility right now," Eberhard said.

That pressure could have long-lasting effects on the careers of some of these attorneys. Bhatt said he's already heard from associates interested in moving to less-demanding practice areas because of child care issues. And Eberhard said she's spoken with some attorneys who worry the pandemic may knock them off partnership track.

"They have just had to kind of accept that the direction they were going has changed … because of the fact that they're not able to give as much of their time as they could eight months ago," she said.

And while legal recruiters haven't heard much concern about burnout so far, Wilson said he wouldn't be surprised if those worries start to crop up around or shortly after the holidays, particularly for parents with young children.

While Eberhard also doesn't anticipate firms will relax billable-hour targets before then, she points out that could change as more schools nix plans for in-person classes.

"It's only within the last few weeks that all of a sudden we found out like, 'Oh, my gosh, my kids are going to be home,'" she said. "So that may be an adjustment that they're going to have to make because nobody anticipated that this was going to be the case."

In the meantime, most attorneys and legal recruiters seem confident that even if firms don't officially relax billable-hour requirements, they will at least be more flexible when evaluating attorneys' performance this year. Perkins Coie, for instance, is planning on approaching its associates' performance reviews more "holistically," LaMonica said, accepting that there might be a dip in productivity.

Legal industry professionals say other law firms will need to be similarly flexible.

"I think they're going to have to be," Bhatt said. "I mean at the end of the day, we're all humans first, right? So I think they sort of have to be in order to build up the good will that's necessary to continue to attract top lawyers coming out of the law schools."

--Editing by Rebecca Flanagan and Kelly Duncan.

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