Article New York Law Journal

Lawyer's Bookshelf: Ending the Gauntlet

21 July 2006

Twenty-five years after women began graduating from law schools in significant numbers, Lauren Stiller Rikleen writes in 'Ending the Gauntlet' about the barriers that still remain to women's success in the private practice of law. Her central thesis is that 'the explosive growth and rapid changes that have transpired in law firms over the past three decades have resulted in an unsustainable business model' and it is that unsustainable business model that stands in the way of women succeeding in the profession.

Another lawyer once told me that lawyers are the only people who think we can run billion-dollar businesses in our spare time--but while he said it with a mixture of pride and self-mockery, Rikleen sees the lack of a coherent management framework in most law firms as a central obstacle to the creation of work structures that would enable women to succeed in those firms.

Rikleen's analysis of the problems facing women is easy to read but nonetheless formidable: she documents in detail how women are treated in law firms, using statistics and bar association reports as well as testimony from her own extensive interviews. Rikleen traces the rapid changes in the legal profession beginning in the 1980s, with more hours being required of lawyers, more lateral hiring, and changes in promotional practices. She points out that managers in law firms are chosen based on their legal and client, rather than managerial, skills. Rikleen's observations of the approaches that many women take to the practice of law provide some useful insights. She notes, for example, that women tend to have a difficult time making informal assignment systems work to their advantage, which she links to her view that women want 'to do interesting work and to do it well,' while men 'more frequently arrive hardwired to develop a quick understanding of the internal politics of the firm.'

Rikleen also points out that while 'the sun always shines on those who make rain,' traditional ways of conducting client-generation activities often exclude women overtly and give women few opportunities to learn how to generate business. She quotes a marketing consultant as saying, 'Corporations will train people to do the job. Law firms just expect the good ones to know how to do such things intuitively.'

Rikleen discusses having children--'where the rubber meets the road'-- commenting that there is little incentive for those male partners who have wives that stay home to change their attitudes toward working mothers. She also cites studies showing 'leniency bias,' meaning that 'objective rules are applied flexibly to in-group members, while out-groups find themselves treated 'strictly by the book.'' And Rikleen quotes a study by the Association of the Bar of the City of New York: 'because so few associates actually bring in any new business to their firms, partners make promotion decisions based on their expectations that an associate will bring in business. These expectations are largely based on subjective criteria that are very susceptible to being influenced by stereotypes about the roles and desires of women.' Rikleen also emphasizes the cost of attrition, which she estimates at twice the associate's annual salary.

While the first two sections of Rikleen's book are useful in bringing together information and observations about how women function in law firms, Part Three, which 'sets forth recommendations for change, describing concrete actions which law firms can implement,' is more uneven. Her descriptions of the apparently successful effort by Deloitte & Touche to incite cultural change from the top is intriguing: as Rikleen says, 'A good plan can provide opportunities for lawyer flexibility and individual growth; a great plan will motivate and excite the entire firm.' She points out the importance of measuring what you want to achieve, and premising compensation on meeting objectives--'upstream' evaluations, for example, are useful only if they are used to help determine compensation.

But much of what Rikleen prescribes for law firms seems naïve. For example, on the one hand she touts flexible compensation as a means of allowing lawyers to meet both work and family responsibilities while recognizing the importance of law firm profitability. Yet just a few pages later she lauds a modified lockstep compensation system as 'maintaining a culture in which all the attorneys work for the success of the enterprise, not their individual statistics'--without recognizing that lockstep systems are premised on everyone working at approximately the same rate and, therefore, are inherently in conflict with promoting worklife balance by allowing lawyers flexibility to choose how much they work.

Similarly, her views on the costs of attrition fail to recognize the pyramid scheme inherent in many law firms, who make money from associates and hope for attrition--at least of the weaker performers--so that they will not have to reward those lawyers with a share of the profits or be seen as kicking them out the door before they make partner. Rikleen's core suggestion that law firm management should be those who are best at managing, not those who are best at generating business, is likely to be dismissed by most lawyers: after all, in corporations, management may itself be the skill that is needed to make the corporation successful, but in the practice of law, great lawyering, not management, is the skill that counts.

Notwithstanding Rikleen's sometimes-naïve proposed solutions, lawyers who are in their firm's managements--or women who want to understand what they face-- would do well to read this book. Rikleen correctly foresees that the firms that 'crack the code' of how to practice law at the highest levels while also allowing their attorneys to choose how best to balance work and family will attract the best talent. She also recognizes that clients play a crucial role in changing firms: if they demand diversity at all levels, firms will change. While record profits at large law firms may make it easy to disregard the costs of associate attrition, firms should indeed worry about the day when top talent, both female and male, simply will not come because they fail to foster success for women as well as men.

At the very least, we can all learn from Rikleen's observations about women and business generation, or about how women may not do well with informal assignment systems. Surely law firms can figure out how to teach women (and men) about how to develop client business and how to make sure that they are getting good assignments--and partners at law firms can look at themselves in the mirror to see if they could do a better job of carrying out the teaching and assignments.

Marjorie Press Lindblom is a litigation partner at Kirkland & Ellis. She worked part-time for several years while her children were small.