Performance Management Practices & billable hours

Disabled people working in law reported that the widespread continued practice of using billable hours in law firms, had a negative effect on their work, impairment and mental health. Where disabled interviewees had worked in contexts where the practice of billable hours had been replaced there was clear evidence that it was easier to secure reasonable adjustments and flexible working arrangements. Billable hours have been an embedded part of the culture of the legal profession, but in the modern service relationship this emphasis on quantifying work by throughput-time appears increasingly out of place, particularly given the growing importance of client satisfaction. As a practice and a method of performance management it is also increasingly anachronistic and potentially

discriminatory. Our findings suggest billable hours could severely disadvantage disabled people in the profession.

An analysis of the uneven distribution of hours billed by different lawyers according to their longevity and status within the profession was reported by Connelly (2017), who detailed how junior lawyers at top firms with only a few years’ experience undertook a substantially larger number of billable hours than any other group. This has been a cause for concern for the Junior Law Division of the Law Society (see Hussain, 2019). As a means of quantifying productivity, billable hours are not only a crude and low discretion measure of performance, but little consideration has been paid to their disabling impact as a working practice. A reasonable adjustment would adjust the target number of hours expected of an employee if their impairment affected the pace they could work at. However, rarely did we find this happened and most interviewees felt this was an adjustment they felt unable to request.

In the rare instances we found requested adjustments to billable hours were granted, interviewees reported it was often the case that workloads between staff were not wholly transparent. The adjustment was, therefore, difficult to identify, which was the reality for ‘Eve’, who worked for a firm that charged by the hour:

“They say they have given me a reduced allocation but I don’t feel like it’s been reduced… it’s not really transparent how they’re treating me compared to everyone else.”

We found anxiety and insecurity were common where billable hours systems operated and these were not only experienced by junior lawyers. A senior partner with more than 20 years of experience cited billable hours as the reason why he chose to take early retirement. He described how “People would put down chargeable time and then write it off because they couldn’t recover it” and would ‘fiddle’ their chargeable hours because of the pressure of performing and bringing in income, but he didn’t feel comfortable doing this. This fostered a negative, competitive and suspicious culture, which he described as “toxic” and ultimately counterproductive. An alternative approach would, he suggested, be to support people “if they don’t make income targets, rather than just say that’s the ‘end of the story’”.

Another former partner felt the whole practice of billable hours was inherently disabling: "At the end of the day…. people who record the most time will get paid the most and have the best promotion prospects. If it takes you longer to do your job you will be

Adding:

"Law is a very simple business really. So when a law firm sets a budget it works out how many fee earners it has, what it’s chargeable hours target is, so say 1500 hours a year per hundred fee earners, and that should produce X number of pounds billing and then you might… set a budget at 95% of… Because what you're doing is working out what your capacity is and then you're saying, right, I'm going to work within 5% of the…the new budget of your costs and what's left over is your prospect. Your profit is divided, you know, to the partners, essentially. This is all driven by the billable hour.”

Some people worked for firms where billable hours were used as a threshold for a bonus, rather than a hard target. This was the case in a corporate law firm in the City where one interviewee didn’t feel his job depended on meeting set targets, though he felt they still played a clear role in measuring success and contributed to what we suggest is likely to be widespread across the legal sector - a disability pay gap. In this firm, partners had oversight of work allocation, however, this operated in what he described as “an organic way”. In another firm we encountered a system that operated where one partner was responsible for having oversight of work allocation and a formal system of transparent work allocation. This, he reported, worked very well. The response of a senior interviewee when we

described this system to him was:

“I think it would be very useful for us to have a work allocation partner, a work allocation person who that’s their job and I can say, ‘By the way, I’m a bit different and please bear this in mind’”

However, commenting on the above and our suggestions that alternative measures of performance are possible, another interviewee felt that:

"Until the profession evolves to a more corporate style structure rather than as a partnership model and the billable hour dies, I don't think you'll really see what you're proposing"

Interestingly, in May 2019, Clifford Chance, a high profile London law firm, announced a year-long trial at its Middle East offices that will experiment with breaking the link between the number of hours a lawyer has billed with the evaluation of their performance and bonus. Instead the firm intends to focus on a wider range of activities (including diversity and inclusion) and how lawyers have adopted the firm’s wider strategy and professional

development. If successful, the Law Gazette reported (Walters, May, 2019), this approach will be pursued out in the UK.

‘Carol’, a trainee solicitor with paralegal experience, told us her choice of which sector and area of law to work in will likely be influenced by the typical turnaround time and types of deadlines expected. She anticipates that the public sector is more likely to allow her to pace her work because the profit motive is less dominant:

“how do I describe it? Like money…profitable clients will have hard deadlines and possibly deadlines where I can’t produce the quality of work they need…They’ll have a turnaround of a day or something, or two hours even, to view a bunch of documents in two hours for me is something that wouldn’t be feasible. So I would hate to be in a position where I couldn’t…I’d do them a dis-service, you know”?

This research was unable to determine whether the pressures related to billable hours are less in the public than the private sector. A common sense view might assume that this is the case, however, public sector performance management techniques can be equally prescriptive and inappropriate for disabled people and driven by factors other than clients and profit. The contracting out of services, public sector spending cuts and the drive to adopt ‘New Public Management’, which mimics private sector practices and is equated with extracting ‘more for less’ from each employee in the name of value for money and

‘productivity’, can equally disadvantage disabled people. The common denominator in both sectors appears to be the appropriateness of the performance management tool in respect of its application to disabled people.