The evils of "elasticity": reflections on the rhetoric of professionalism and the part-time paradox in large firm practice.

• Author: Uelmen, Amelia J.
• Position: Professional Challenges in Large Firm Practices

INTRODUCTION

"Don't do it."

This was the wise advice of the senior associate I had adopted as my older brother and protector to guide me through the labyrinth of large firm life and politics. I had moseyed into his office, shut the door, and asked the question: "What do you think would happen if I asked about the possibility of going part-time?" A grave look came over his face, his eyes darted about the room, and he lowered his voice to a whisper: "It's professional suicide--don't even ask."

After three years of working as a full-time litigator, I was tired. At that point, the expected minimum for a full-time associate litigator in New York was at 2000 billable hours. Allotting four weeks total time off for vacation and all holidays, plus a couple of "sick days," that put the weekly target at about forty-two billable hours, or 8.5 per day. Adding in time for administrative work such as timekeeping, the training courses required for junior litigators, continuing legal education, helping with interviews, firm entertaining, a lunch break, and some time to be sociable with colleagues, it always worked out to be at least a ten or eleven hour workday. (1) Every day. And this did not count the effort to emerge from a catatonic state after particularly intense weekends or late-night work running up to a deadline.

In fact, even though I was for the most part working on appellate briefs for pretty slow-moving litigation, the work was increasingly bleeding into weekends and late evenings, so it was becoming difficult to juggle other commitments in my life. I wanted to find a way to protect my evenings and weekends so I could calmly clean the house, cook dinner, attend church, read non-law books, work in the yard, and keep up with friends and community activities outside the law firm. When I would get home at 8:30 or so in the evening, my friends with whom I shared a house had already finished dinner. It was difficult to wind down, and so I frequently had trouble sleeping and was increasingly edgy.

On the other hand, I really enjoyed the cases I was working on. I especially liked being, as one partner described it, a "sticky issues analyst," and was cultivating a sense of "craft" in drafting arguments and briefs. I wanted to stay, but was hoping to essentially "buy" from the firm a clear understanding which would give more security for my evenings and weekends. I calculated that a target of thirty billable hours per week, or six hours per day, with an additional eight to ten hours per week allotted for other tasks, would bring me to a forty hour work week. And when I looked in the policy manual, there it was--a part-time policy--with exactly my calculations. It sounded great!

The whole idea started to seem very reasonable. Granted, my request would be a little unusual. The only other associates who had asked for similar arrangements were mothers with infants. But why should that make a difference? It was not as if I were asking for particular generosity, for I was ready to take a proportional cut in pay, and to forego any bonuses.

After listening to my colleague's wise advice, I decided that even if it was professional suicide, I would go ahead and at least ask the question. I figured that if the answer to my request was no, then that would be a sign that it was time to start looking for a different kind of job. (2)

Almost immediately after I sent my one-line email to the New York branch office managing partner--"With whom should I speak about the possibility of going part-time?"--I discovered that my colleague was right. Even though I had extensive expertise in both the law and the facts after working for three years on a particular set of cases, I was simply dropped from all of my work, with no questions or discussion. The partners avoided meeting my eyes in the elevator and the halls. It was as if I had fallen off the planet.

I had not anticipated such a drastic response and so I was not quite ready to find a new job. Panicked, I went to the assignment partner to beg for any work. I was put on an enormous document review with the assignment of combing through several hundred boxes, looking for particular account numbers. This lasted for several months. Ultimately, I attached myself to an "of counsel" who had been recently hired as a lateral and who had not yet built up a pool of loyal litigation associate help. Because he had not spent his career in large firm practice, the part-time arrangement did not strike him as especially unreasonable. And because he was at that point happy to have thirty hours a week from anyone, the arrangement worked well for both of us. I stayed at the firm an additional year and a half and learned a great deal.

My colleague was right: even to utter the word "part-time"--especially off the somewhat beaten path of motherhood--was professional suicide. (3) How could the firm not see what I saw--that many elements of large firm practice actually lend themselves to more flexible work schedules? And why was the reaction so strong that there was no room for reasoned conversation?

This essay is neither a report nor a detailed sociological study about part-time arrangements at large law firms, for this ground has been thoroughly and thoughtfully covered. (4) Much of that work defines the "part-time paradox" as the struggle to build a career and a family at the same time. (5) In particular, many of the studies analyze the problem through the lens of gender, discussing the tensions which arise when young women associates become mothers, and their subsequent efforts to juggle the responsibilities of parenting with the demands of a large firm schedule. (6)

I would like to add another tile to the mosaic of reflection by focusing on how a large law firm articulates its reaction to a request for a part-time schedule. In my own efforts to work out a part-time arrangement at a large law firm, what struck me was how hard it was even to begin a conversation about an alternative schedule. In what little I could extract, I detected extremely deep and sincerely held beliefs that a part-time schedule was simply incompatible with the realities of large firm practice. Yet the explanations propounded did not coincide with my own experience of large firm work, which in many ways seemed to lend itself to more flexible arrangements. This, I believe, is the real "paradox" in large firm culture.

The difficulty in getting a conversation going led me to reflect on language--how we talk about professional life and identity in a large firm context--and on the disconnect between that language and the reality of the work itself. This essay sets forth the theory that a twisted use of the rhetoric of professionalism both masks the realities of large firm practice and reinforces some of its most unhealthy and imbalanced tendencies. In an effort to create space for a conversation about whether part-time arrangements are compatible with large firm practice, the essay attempts to peel back some of the layers of rhetoric, and also to confront some of the deeply-entrenched cultural obstacles. Ultimately, it hopes to show that part-time arrangements cannot only serve as an alternative voice in large firm culture, but may even contribute to a "renaissance" of some of the legal profession's most dearly held values. (7)

Part I describes the salient aspects of the professionalism rhetoric used to diagnose and describe the maladies which plague large firm practice. According to this rhetoric, "crass commercialism" is perhaps the root of all evils. While the legal profession was once a service to the public, distinguishable from mere trade or business for personal gain, now lawyers unabashedly stoop to the standards of the market. Sadly, many conclude, the "tyranny of the billable hour" has such a chokehold on large firm practice that there is little hope for change. The rhetoric, however, finds some hope for redemption in an unflagging commitment to service: excellent service to clients and service to the public good.

Part II parses two aspects of the rhetoric: the "tyranny of the billable hour" and the dedication to "client service." Breaking up the elements in each of these issues reveals how the rhetoric bundles together different and distinct problems. Some of the problems are probably intractably difficult to resolve, but others can and should be managed and controlled, just as the work and staffing of any large business must be managed and controlled. Through this lens, to recognize the business dimensions of large firm practice is not necessarily a bane; it may even be a helpful aid in carving out a niche for those who prefer to work fewer hours for less money.

Part III recognizes that even if large firms were to accept such analyses, deep seated cultural tensions would still obstruct open, creative, and productive conversations about the work-life balance. Aided by a text from THAT HIDEOUS STRENGTH, (8) the third book in the C.S. Lewis science fiction trilogy, the essay submits that lurking beneath some of the resistance to descriptions of law as a business, and some of the rhetoric of loyal dedication to client service, is what C.S. Lewis might describe as the evil of "elasticity," in which the all-consuming demands of the workplace gradually corrode hope for a more harmonious and balanced life. Based on that text, the essay then flags the dark side of seemingly positive and constructive concepts in professionalism rhetoric such as "calling" or "vocation," "commitment," and "service."

The essay concludes where it began--with a reflection on language. Using A. O. Hirschman's scheme of "exit, voice and loyalty," it proposes that the request for a part-time schedule should be interpreted neither as exit, nor as an act of disloyalty to the firm or the profession, but rather as a "voice" of sanity, creativity, and hope for a balanced life. Large firms that welcome the "voice" of attorneys with part-time arrangements may...