The Top Ten Family Friendly Firms: Yale Law Women's List, and Why We Believe It Can Make a Difference

Two weeks ago, Yale Law Women released its third annual Top Ten Family Friendly Firms List. The Top Ten Firms, in alphabetical order, are:

• Arnold & Porter (Washington, DC)
• Covington & Burling (Washington, DC)
• Debevoise & Plimpton (New York)
• Dorsey & Whitney (Minneapolis)
• Gibson, Dunn & Crutcher (Los Angeles)
• Kirkland & Ellis (Chicago)
• Kramer Levin Naftalis & Frankel (New York)
• Mintz Levin Cohn Ferris Glovsky and Popeo (Boston)
• Perkins Coie (Seattle)
• WilmerHale (Boston)

To produce the List, my classmates and I surveyed the Vault Top 100 firms, asking about issues ranging from parental leave policies and their usage, to same-sex domestic partner benefits; from part-time practices, to percentages of female partners. We released the Top Ten List in an effort to spark change in the profession, to encourage firms to take greater steps toward improving the quality of life for their attorneys, and to make Big Law a viable, livable profession in the long term. Whether or not those goals are realistic has yet to be determined.

The recent proliferation of rankings like the Top Ten List has provoked considerable discussion about the ability of external evaluations to provoke meaningful change in firm policy. Critical assessments of work-life balance have proliferated for many years (even decades), yet many would argue that the systemic changes needed are still as remote as ever. Still, we wouldn't have created the Top Ten List if we didn't believe strongly that it could make a significant difference.

This column will explore possible causes of work-life conflict and poor retention of women at major law firms. It will also examine whether rankings like the Top Ten List have the potential to solve a complex and entrenched problem.

Policy Versus Practice: Firms Support Work-Life Balance on Paper, But Do They Actively Implement Their Policies?

Nearly every major law firm would agree that improving the retention of women attorneys and creating better work-life balance are laudable goals, and most firms have policies in place supporting these objectives. Nearly every firm in our survey has a program or initiative for retaining and promoting women; 96% percent of firms surveyed have a part-time or flextime option for their attorneys; 93% of firms provide some form of emergency childcare; and the average length of maternity leave is a generous 16 weeks. East Coast firms are leading the way on this issue, with most offering 18 weeks of maternity leave. Family-friendly policies have clearly taken hold.

There's a gap, however, between policy and practice. In the firms we surveyed, only 4% of partners and 7% of associates are working part-time, on average. A 2006 National Association for Legal Placement (NALP) study also found that only 5% of lawyers were working reduced hours, despite the fact that other professional specialties had part-time rates of about 15%; engineers and physicians seem more able to invoke part-time policies than lawyers do.

Even more telling are the low numbers of women ascending to partnerships: Though the average percentage of female associates per firm was 44%, the average percentage of female partners was only 19%. In 1988, the percentage of entry-level female associates at most large firms was 40%. The rough equality of associate classes should have translated into greater numbers of female partners two decades down the road, but it didn't. To the contrary, NALP has reported that female attrition rates in 2006 hit a record high, with an average attrition rate of 19 percent.

One Possible Explanation -- The Billable Hour - and Why It May Not Be Persuasive

If women are entering these firms with seemingly progressive policies in place, what is the cause of the exodus? The most obvious culprit is the business model of most law firms, in which the billable hour trumps all. When your business makes money based on hours, it just seems counterintuitive to tell your employees to work less.

However, many studies have shown that profit concerns do not provide a rational basis for stifling family-friendly practices. Many groups, like Flex-Time Lawyers and the Project for Attorney Retention, have argued that, contrary to what you might suspect, inadequate work-life balance practices are actually costing firms money. Associates aren't profitable until their second or third year, and the cost of losing an associate ranges from $200,000 - $500,000. Part-time attorneys use fewer firm resources and are not usurping overhead costs unnecessarily. Part-time attorneys are also more efficient and productive than their full-time colleagues. And finally, most clients are indifferent to an attorney's schedule, but they will pay to maintain a consistent client-attorney relationship for years on end.

If these studies are correct, and law firms could be more profitable with increased work-life balance options, then why haven't they rushed to put their policies to use? The real root cause of the problems of female retention and promotion remains unclear.

Is the enormous emphasis placed on the billable hour, with its immediate, tangible returns, impossible to overcome in a firm's culture and business decisions? Is the practice of law simply incompatible with flexible or part-time schedules? Are attorneys leaving because they don't like the firm, or rather because they don't want to be lawyers? Are women "opting out" whenever possible, or being pushed out by inflexible old-boys' clubs?

With so many unanswered questions to the problem of female retention and promotion, is it even possible for rankings like the Top Ten List to promote positive change? What is the best way for students and watchdog groups to address the problem?

Can Law Firm Rankings Make an Impact?

Obviously, my colleagues and I hope that the Top Ten List will have a positive impact and have tried to structure our report in a way to maximize its effects. For the first time this year, we surveyed firms directly. In doing so, we were able to ask more probing questions about policy usage: How many attorneys worked part-time? How many attorneys used their full parental leave? How many partners worked part-time at the firm before or when they were promoted? We asked these questions not simply to get more accurate data for our rankings, but also to encourage firms to track the numbers.

We also provided firms with the opportunity to receive confidential feedback on their responses. They were advised of their positions relative to other firms, and were provided with suggestions for better policies and better policy implementation. HR representatives, in particular, were intent on using the data to improve practices at their own firms. By providing firms with an incentive to track true indicators of performance against an industry benchmark, we hope to encourage firms to explore innovative solutions to work-life balance conflicts.

The Carrot or the Stick?

In order to gather this type of information and provide this level of feedback, a trade-off was made: in exchange for more sensitive data, we promised positive publicity only (in other words, we'd disclose the identity of firms that excelled, not those that fell short), and agreed to keep all individual results confidential. This method has garnered a great deal of criticism on several fronts. Why praise firms when so much is still lacking? Wouldn't we generate more publicity, and thereby increase pressure on firms, if we published the best as well as the worst?

Ultimately, we felt the benefits of our approach outweighed the drawbacks. By promising confidentiality, we were able to start in-depth conversations with firms on improving work-life balance and retention of women. Though we wish we could release detailed data to students, we know the numbers will be helpful to firms, which can start to enact change rather than simply advocate for it. Other rankings, like Building a Better Legal Profession (BBLP), provide a unique service to students by organizing and publicizing firm-specific data; however, fear of BBLP's "D" and "F" report cards may cause some firms to clam up and become defensive, rather than explore solutions. If the requests for feedback we've received are any indication, the positive publicity carrot seems to work at least as well as the negative stick. More than 50% of participating firms have had detailed sessions with us to discuss how they might improve.

Despite decades of investigation and talk, the key to improving female retention and work-life balance remains elusive. If continued exploration of the issue is integral to its eventual resolution, then we at YLW want law firms to ask themselves, "Why weren't we on the list?"

It is only through open and honest discussion that we can find our way to more progressive policies. It is our hope that the Top Ten List will serve not only as a tool for students and attorneys to advocate for better work-life balance, but also as an aid for law firms to assess and ultimately improve their family-friendly practices and retention of women.