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6 posts from April 2017

April 28, 2017

Would Law Firms Boot Bill O'Reilly?



How many of you did a happy dance when you heard that Bill O'Reilly was getting booted from Fox News?

I did.

Look, it's been a brutal year for women—and, sadly, a fabulous one for male chauvinists of the Mad Men sort. I won't revisit all the indignities, but let's just say that electing a man to the presidency who boasts about grabbing women's genitals wasn't exactly uplifting.

Hence, it was a delicious treat that O'Reilly, who's been accused by multiple women of sexual harassment, is finally getting his comeuppance. Even if we can't nail Donald Trump (remember at least 18 women accused our prez of sexual harassment or assault), it's nice that his kindred spirit O'Reilly is getting his due.

I was cheery for five whole minutes, but then I remembered that accusations of O'Reilly's loutish behavior have been out there for over ten years. (The New York Times reports that he settled a suit brought by former Fox producer Andrea Mackris for $9 million in 2004.) All told, Fox has coughed up a total of $13 million to settle suits by five other women.

Of course, there's a simple business reason why O'Reilly didn't get the old heave-ho much earlier: He was a huge cash cow (oops, I meant "bull") for Fox, bringing in more than $446 million in advertising revenues from 2014 to 1016, according to the Times. He'd be sitting pretty at his anchor chair right now, if the Times didn't break the story about the $13 million payout and advertisers didn't abandon him as a result.

I'm pretty sure there's no O'Reilly equivalent in Big Law. Nor is there a major law firm that's runs like Fox News (remember, Roger Ailes, Fox's former chairman also harassed women).

But here's my question: Would firms be equally reluctant to get rid of a top rainmaker who behaved badly?

You betcha. I mean, can you imagine pushing out a rainmaker who's responsible for a quarter of the firm's billings just because he (or she, for those who are p.c.) is a nasty, abusive and predatory piece of work?

Most firms, like entertainment enterprises, are dependent on individual stars to keep the money pumping. Which means they would would bend over backwards to keep such a vital player. And like media companies, they'd probably turn their guns on the complainer rather than one of their power brokers.

So what would prompt a firm to finally oust the offending partner? Bad publicity—the same thing that spurred Fox to fire O'Reilly.

"Unless some truly egregious situation finds its way to the press, big law firms can fly under the radar," says former Kirkland & Ellis partner Steven Harper, who's an American Lawyer contributor. "If clients don't know, they can't react."

 That said, Harper says sexual harassment is not the problem it once was in law firms or corporations. "Things are better than they were 20 years ago. A prior generation of leaders would have turned a blind eye, or given a wrist slap, to sexual misconduct, especially by rainmakers."

I agree that firms can't turn a blind eye anymore, certainly not to egregious forms of unacceptable behavior. And for better or worse, most lawyers are too smart, cautious or repressed to commit blatant acts of offensive behavior (at least the sexual sort). Which means the gender inequality that most women face in firms and corporations is a lot trickier to prove.

Is O'Reilly's ouster a hopeful sign for women? While it's heartening that he was publicly chastened, it's jarring that it's taken over a decade. And let's not forget that he's now licking his wounds with a purported $25 million in severance.

If you see the silver lining, tell me about it.



April 24, 2017

Should Firms Out Lawyers on Work/Life Balance Track?

659e04816f85becfea1a2b234d97a49d7a2c52feThis is either stigmatizing or wonderfully liberating.

I'm talking about one firm's policy of identifying lawyers who are on the work/life balance track. No ambiguity as to who's gunning for partnership there.

The firm that's taking this tact is Littler Mendelson, which lists its "flextime" lawyers right on its website. Click on it and you will find 74 smiling facese]. And yes, as you might have guessed, 69 of the 74 flextime lawyers are women.

To be clear, Littler's "flextime" designation doesn't apply to full time lawyers who happen to work off site. Littler shareholder Scott Forman, who created the flextime program, says it's "designed for those looking for work/life balance." He adds that means participants work "significantly fewer overall hours," and that there's "no expectation of client development, speaking engagements or article writing."

The program was born out of the recession of 2008, explains Forman, when firms faced a market shakeout. He adds that the policy also acknowledges the reality that not everyone wants or can be a partner. "In a class action case, typically the client wants the most senior thought leader to provide strategy," he says. "But there's also lots of tactical, routinized work."

And do clients think less of those lawyers on the flextime arrangement? Not at all, says Forman. "From a client perspective, it creates value" because "the client is getting someone senior who costs less—at a price point that's less than many associates." (Forman says lawyers in the flextime program have on average 13.5 years of experience.)

So the client is getting a great deal. And the flextime lawyers are thrilled that they have control over their lives. (Forman says there's now a waiting list for the program.) So what's there not to like?

Here's the thing: I'm still a bit bothered that women make up 93 percent of the participants in the Littler program. And let's be honest, the term "flextime" doesn't have the greatest connotation. More often than not, it suggests a female professional who's not fully vested in her career.

Why single out this group, asks Lauren Stiller Rikleen, who consults about women's issues in the legal profession: "It should not be such a big deal that it is necessary to identify users of the policy on a website. That, to me, would signal that there is still some stigma attached that the workplace may be trying to get past."

Designating flextime lawyers on the firm website is a "horrible idea, completely stigmatizing," agrees a female associate at a big firm in New York "It basically is saying to the world of clients that I won't be always available for you." Instead of singling individuals out, she advocates that the policy "be placed in the benefits section of a firm's website that will be read my potential job applicants to the firm, not by clients looking up specific individuals."

Stigma or not, some people might not find the title of flextime lawyer so horrible. "It’s a fantastic recruitment tool," says consultant Caren Ulrich Stacy. "It sends a message to law school grads and laterals that their lawyers use it and support it."
So is it just some of us who are hung up about this life/balance label? Maybe it is a pink ghetto. But maybe that shouldn't matter.


April 18, 2017

Firms Announce Flex Time Policies. How Exciting.

23dbc9767b85ebca4d38f836edee65d02dd109d3Maybe I've covered this topic too many times, but isn't flex-time so 2010? Based on what I've seen, many if not most lawyers (except for the junior ones) work wherever they want—from home, their kids' soccer games, the gym. I mean, who the hell cares where you are working so long as you bill, bill, bill.

Well, apparently flex-time is still making news—at least, some firms are making it so. Recently, a bunch of firms announced with some fanfare that they are implementing flex-time policies as if they just discovered a management marvel. Morgan Lewis & Bockius did so, followed by Jackson Lewis and Baker & McKenzie .

Maybe those firms are unusually tradition bound, but I bet their lawyers have been working off-site for some time too. So why the big fuss about flex-time now?

Some theories: First, I guess it's always good to have an official policy about flexible working arrangements rather than a defacto one. "Formalized policies are important," says legal profession consultant Lauren Stiller Rikleen. "Otherwise, you run the risks of quiet side deals where it seems like others can have opportunities not fully available."

My more cynical theory is that firms are making the fuss to get the attention of those fickle millennials for whom a bespoke work schedule is a birthright. "Millennial men and women have clear expectations for how they want to manage their work-life responsibilities and their personal time," says Rikleen. "It is simply a wise business decision to try to retain younger talent."

But as any third grader knows, having a policy on the books means squat if the powers-that-be aren't truly behind it. "The problem for most firms is moving from stated policy to accepted practice," says diversity consultant Caren Ulrich Stacy. "If the culture—aka the influential partners—don’t personally support it, it’s stigmatized and destined to fail."

In other words, if you work for an old school partner who believes that associates should be tied to their office seats 10 hours a day, you're stuck. That's just life in a law firm, no matter what the official policy might be.

That said, my sense is that those dinosaur partners are disappearing. Frankly, if you can bill just as much if not more out of the office, who gives a hoot if you're working out some kind of cave? (Think how much wasted time you'll save if you don't have to shower, get dress, put on makeup or schlep to the office.)

What's more, I wonder if firms are thinking about how much they'll save on rent if more folks worked from home. Greg Nitzkowski, a managing partner at Paul Hastings in Los Angeles, says that the flex-time policy is part of its “office of the future” where at least 10 percent of the firm’s lawyers won't have offices.

Thankfully, not everyone is quite as jaded as I am about these policies. "Firms are trying everything they can, including formalizing flextime, to improve diversity," says Stacy about law firm recruitment. "They seem to be doing so with the best intentions, not just for publicity."

Yeah. Whatever.


April 11, 2017

Yep, Women Are Lousy at Rejection

Sad-womanI loathe admitting this, but we've all seen this: Women take criticism much harder than men. Rather than bouncing back from a job rejection or less than stellar review, women are more apt to lick their wounds and think twice about placing themselves in the firing line.

That reaction is one reason women are underrepresented at the top, according to a recent study. Writing in the Harvard Business Review, Raina Brands and Isabel Fernandez-Mateo of London School of Economics, report that women are less likely to apply for a job if they had been rejected for a similar position in the past. Their study, which involved over 10,000 senior executives competing for management jobs in the U.K., finds that women took themselves out of running 1.5 times more than men who had been rejected.

It's not shocking that women take rejection so hard since there's ample evidence that women are so  hard on themselves. Indeed, a 2014 Hewlett Packard report finds that women won't apply for a job unless they think they are 100 percent qualified, whereas men will gun for it when they meet only 60 percent of the criteria. Arguably, it's this cult of perfectionism that stokes women's fear of failure while eroding their confidence.

But here's the twist in the LSE study: Women aren't lacking in self-confidence; rather, they're not confident about the system. Write the authors:

It’s not that they didn’t think they were good enough; they were withdrawing from the corporate race because of concerns that they would not be valued or truly accepted at the highest levels in the organization. Often that feeling was a result of the way hiring and promotion processes were being managed (or mismanaged), sending women subtle (and sometimes overt) signals that the highest rungs of the corporate ladder were intended only for men.

If women are blaming the system rather than their own ability or ambition, I'd argue it's a healthy development. That said, the result is the same: A dearth of women in top positions.

The findings in the study hit home with women in the legal profession too. "I've heard of plenty of examples of women getting to the final round in a high-level job interview—where they are one of two candidates left—to find that the male gets the job," says law firm consultant Melissa McClenaghan Martin. "And if it happens more than once, they definitely start to believe they are passed over because they are a woman." 

Firms have to establish a baseline of fairness. It's critical that "people believe that their persistence, and resiliency in the face of initial rejection, are likely to pay off," says career coach Karen Kapolowitz, a former big firm lawyer. If women "perceive the system to be unfair, they don’t want to compete." 

But getting women to stick it out go beyond this fairness issue, says Martin. She says firms need to face the fact that "women, more than men, need recognition and affirmation to stoke ambition." At most firms, though, says Martin, women (and men) don't get much encouragement beyond the annual review. And that kind of feedback occurs too little, too late. "The only time they knew they had a future at the firm was when they were ready to leave," says Martin, adding, "that's what happened to me," alluding to her own decision to leave Fried Frank as a senior associate.

Firms need to do more to get women to stay, but women also need to be more resilient, says Kaplowitz: "This study strongly supports the idea that it is important not to take rejection personally and to be able to see rejection as part of a process." Thomas Edison, she adds, was asked how many times he failed before he invented the light bulb. "He reportedly said that he had never failed. It was just a 2000 step process."

As anyone who's been around the block knows, it's not always the brightest light bulb who gets to the top job. More often than not, it's the one who stubbornly keeps going who prevails. All you have to do is look at the guys at the top.



April 6, 2017

Mike Pence, Lust and Big Law

1024px-Mike_Pence_&_Karen_Pence_by_Gage_SkidmoreWho knew Mike Pence is such a lustful rascal?

I'm referring, of course, to the recent profile of Pence's wife Karen in which Washington Post reporter Ashley Parker notes: "In 2002, Mike Pence told the Hill that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either."

Wow, what an animal Pence must be! The implication is that he can barely control himself alone in a restaurant with a woman or even in a cocktail party packed with people, unless someone (preferably his wife) is holding him by the leash. Gosh, it must be awfully hard to get work done in a place like Washington where women are lurking at every corner.

As you'd expect, the backlash to Pence's policy was immediate. In Vox, SMU law professor Joanna Grossman condemns Pence's practice as "clearly illegal when practiced by a boss in an employment setting, and deeply damaging to women’s employment opportunities."

And in Cosmopolitan (yo, Cosmo is a feminist pub?), former law firm associate Jill Filipovic writes: "If men like Pence won’t engage with women one-on-one in informal settings, it’s the women who miss out—because it’s still men who run the show," adding that there's only so much a woman can do at those "ladies-only" networking events.
So true. But here's what puzzles me about all the outrage directed at Pence: Is his cautionary policy toward women really that different from what goes on in law firms and the rest of Corporate America?

From what I've observed, many male partners practice some version of Pence's policy. They might be okay about lunching alone with a female associate, but dining with her at night? No, no, no. They're essentially Mike Pence Lite.

Bosses treat men and women differently, and that inequality is ingrained in the culture. Recalling her own experience in a law firm, Filipovic writes that male associates enjoyed certain privileges not accorded to women:
I noticed they would mention weekends golfing at a partner’s club, or afternoons at a baseball game with their boss and a prospective client. Sometimes, these same young men who were at the same stage of their professional lives as I was, would mention the advice they got from partners during these informal outings—tips on how to bring in business or how to position themselves to make partner someday.
Any woman who's worked in a law firm or corporate setting is probably familiar with those scenarios. How many times have we seen one of our male colleagues trot off with a senior partner for after work drinks while we stayed behind at the office? (Yes, I've experienced this in the world of journalism too.)
All that male bonding might seem natural, but I think it also speaks of a primal fear of women in the workplace. A woman might be an ace litigator or dealmaker but she's always judged as a potential sex object who can ruin a man's career.
You might remember that consultant Sylvia Ann Hewitt found in her 2012 study that 64 percent of senior men would not sponsor a woman precisely because it entails spending one-on-one time together that might spark rumors of an inappropriate relationship.
And let's not forget that the marriage structure of male bosses influences their views about working with women too. According to a 2012 study by the University of North Carolina, Harvard University, New York University and the University of Utah, married men with stay-at-home wives or wives who work part-time tend to have more negative attitudes about working women. And guess what? Law firm partners and corporate executives tend to have traditional marriages.

Maybe all of these antiquated attitudes will change when the next generation take over, especially since women make up 50 percent of the junior associates at some big firms. At some point, something has got to give, right?

In the meantime, Mike Pence and his prudishness (though some might call it prudence) live on.


April 3, 2017

So You Want to be a Divorce Lawyer? Dishing with Eleanor Alter

Left_to_right-_Woody_Allen _Eleanor_Alt-Article-201703161353
I must have been delusional: When I was a corporate associate many moons ago, I thought I might find happiness as a matrimonial lawyer.

Though I am a sucker for the human interest stuff, I am not a very patient person. I doubt I would have lasted in family practice more than two weeks. That said, I think for some unhappy Big Law campers, matrimonial practice—with all its human drama—has a certain appeal.

If anyone would know what it takes to be a successful divorce lawyer it's Eleanor Alter (above, center) A doyenne of the matrimony bar, Alter, 78, has been at it for more than 50 years. (She's also legal royalty of sorts: Her father was Charles Breitel, the former chief judge of the New York Court of Appeals, and her first husband is William Zabel, the marquis partner behind Schulte Roth & Zabel).

Alter's client list is studded with legends of the entertainment business: Mia Farrow (she represented the actress in her custody battles against Woody Allen), Madonna, Robert DeNiro, John Lennon, Ethan Hawke and Uma Thurman. (Alter represented Hawke in his divorce against Thurman; years later, she represented Thurman in her custody dispute against another ex-lover.)

It all seems so fun and glamorous, like binge-reading People magazine at the beach. But is that the reality of divorce law?

Recently, I met with Alter and her partners Jenifer Foley and Adam John Wolff to talk about what it takes to be a divorce lawyer for the rich and famous, or at least the well-to-do (that's you, Big Law types).

You all started at big firms, and now you are part of a seven-lawyer matrimonial boutique. What's it like to be totally devoted to doing divorces? Isn't it awfully draining?

Alter: Sometimes I wish I could look at documents for a month because documents don't cry. We're not trained as mental health professionals, and if you're not careful, you take on the emotional content of the client.

Foley: I always have a box of candy and a box of Kleenex at my desk. Most people at big firms wouldn't want to do this. Sometimes people think this is easier or that it's fun to work on matters in the paper. They come here for six months, then say, "I can't do this. I don't want to be where people are crying."

Wolff: Some people will say, "I can't stomach it"—like it's not legitimate enough. But what I do is just as sophisticated as what I did as a commercial litigator. It also requires patience that I didn't know I had.

Besides having infinite patience, what else is essential for a divorce lawyer?

Alter: Be honest, hardworking and smart. You don't need to be brilliant but you have to like people and accept the fact that they are emotional, scarred and greedy. I don't think divorce is different from a law practice that breaks up. The only difference is that there are no kids in a partnership breakup.

But divorce must be messier and more emotional than a business breakup. You must be as much therapist as lawyer. Can you bill for all the time that you spend comforting clients?

Alter: It's all part of the the relationship. There are a couple of hours a day you don't bill.

Wolff: You can't bill every hour. IBM is not writing the check in divorce cases.

What about your hours? Are you working less hard than when you were doing commercial litigation at a big firm?

Foley: I work as many hours as I did at [Strook & Strook & Lavan]. They are harder hours—more draining and emotional.

Let me see: You can't bill all your time, your billing rates are probably lower and your hours are just as bad as they were in Big Law. And your clients are basket cases. Why do divorce law?

Foley: I just like it! I feel I make a difference. I'll get baskets of fruit and flowers at Christmas time from clients. No one did that when I was at Strook.

Wolff: It's nice to help people reach closure. It's never boring. You learn about everything: law firm partnerships, hedge funds, what kind of dental practice make the most money, small businesses. We've read more partnership agreements than anybody else. We actually know how much people make. There's a little voyeuristic thrill involved.

Speaking of voyeurism, Eleanor, you're a big brand for celebrities getting divorces. Are they different from the rest of us when their unions fall apart?

Alter: Yes. They have so many people taking care of everything that they have no clue about their finances.  And sometimes they want press when they're getting a divorce, which is not a good idea especially if kids are involved. But there's a percentage of celebrity clients who are great parents. And some are really smart.

What? Celebrities aren't all stupid and vapid?

Alter: I don't think they're stupid at all! It's the [celebrity] culture that's hard—the drugs and drinking in the music world.

So celebrities are not that bad. Who are the worst clients?

Alter: Hedge funders, the master of the universe types.

Are there some clients you won't touch?

Foley: If we can't certify their tax returns, we won't represent them. . . I'll work at 7/11 before I take something that I don't think is right.

Wolff: If we see fraud, we tell them to file their taxes and put their nanny on the books before we'll represent them. It's a hard enough job without dealing with people who are guilty of tax or money fraud. We see more tax fraud than the IRS.

You've had a front road seat at marriages that fail. So what drives people to divorce?

Alter: A quarter of the time people get married for the wrong reason: They're hoping that the guy will change, or someone gets pregnant, or the parents force them. A big percentage is because expectations weren't met. Some marriages just wear out; you're married for a long time, then the spouse says one day, you're not exciting anymore.

Wolff: One husband said he was leaving his wife for his girlfriend because his wife only met 95 percent of his needs.

Alter: Can you imagine that—95 percent is not good enough?


About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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