Is It Time to Get rid of the Billable Hour?
LawCare explores whether it is time to get rid of the billable hour in the legal profession. Is it time to address the issues it presents?
At LawCare we have been providing emotional support to legal professionals for 21 years through our free, confidential, helpline and peer support network. We have visited hundreds of legal workplaces over the years and we have listened to thousands of people in the legal community tell us about the stress, anxiety and depression they are experiencing, which is often caused or exacerbated by long hours, high billing targets, and a competitive work environment.
Lawyers who call us have often been working evenings and weekends for months at a time. We’ve had calls from solicitors who’ve arrived at the office on a Tuesday and not left until Sunday. There are many reasons why working in the law can be stressful, but one of the most common is the billable hour.
Research shows that higher levels of autonomy in the workplace result in an increase in job satisfaction, motivation and happiness as well as decreasing employee turnover.
Having time to pursue a life outside of work is vital for wellbeing. As human beings we need time to sleep, eat, see our family and friends, relax, be outside , take exercise – these are not simply ‘nice to haves’ – without these, wellbeing can start to deteriorate very quickly. Legal Cheek’s annual arrival and leaving times survey in 2018 showed that, at one firm, the average leaving time of junior lawyers was 10.01pm, which leaves precious little time to do anything at all other than sleep. An American Bar Association study in 2016 found that psychological predictors of well-being decreased as lawyers were required to bill more hours. Those lawyers with higher billing targets experience a dip in motivation, satisfaction and increased levels of alcohol misuse.
So if long hours lead to decreased personal wellbeing and stress why should the legal profession be worried about this as long as the work gets done? Because it can start to affect the bottom line. We know that stress contributes to raise levels of cortisol and other hormones, which negatively affect the brain’s ability to function and process information. Lawyers experiencing stress, anxiety or depression can find it difficult to concentrate, pay attention to detail or interact with colleagues. Regularly getting less than seven hours’ sleep has been shown to have a significant negative impact on performance. Judgment and decision making skills are often affected by stress, as well as an ability to manage time effectively which can in turn impact on competence.
Evidence shows that working long hours results in a drop in productivity, poor performance, health problems, and lower employee motivation.
Research from the USA has shown that lawyers with poor mental health have poorer ethical decision making. Mistakes made by lawyers can be costly to firms and negatively impact their reputation as shown by the recent Sovani James case brought by the SRA , where a junior lawyer was told to work evenings, weekends and bank holidays to cover any shortfall in her billed hours and ended up backdating letters to try to mitigate her workload. She was struck off.
Across the general UK workforce, employees are experiencing more autonomy in the workplace, flexibility and control over what hours they work and from where, where they sit, what they wear, and in some cases how many days they take as holiday with some workplace removing traditional holiday entitlements. Developments in technology have made this possible, yet law is one of the industries which have been slow to move with the times in this area, with the majority of firms operating on a partnership model that has been around for well over 100 years. Research shows that higher levels of autonomy in the workplace result in an increase in job satisfaction, motivation and happiness as well as decreasing employee turnover.
Many clients no longer want to pay for legal services in the traditional way, leading to more fixed fees and consultancy style law firms.
Presenteeism, where an employee is disengaged, or comes into work when not physically or mentally fit, is another issue which arises in the law due to long working hours and impacts on productivity. If law firms only use hours worked as a measure of success, then lawyers will remain obsessed with the hours they bill. Many lawyers will stay late or arrive early in order to achieve a bonus, because their boss is there and they want to be seen to be at their desk, or because they feel they are in competition with a colleague. This can particularly be a problem where there are several trainee lawyers vying for one permanent contract, and in some cases, managers can use this against them.
Evidence shows that working long hours results in a drop in productivity, poor performance, health problems, and lower employee motivation. Research from Stanford University revealed that the output among employees falls after their work week reaches 50 hours. Anyone working over 55 hours will simply not produce any more work. In fact, not only that, but there are several examples where working less hours actually increases productivity. Full-time staff in Denmark are 23.5% more productive per hour than UK workers, despite working four hours fewer per week on average.
In light of this some firms are re-evaluating how they assess employee performance.
The legal landscape is changing. Economic realities, new technologies and ways of working alongside client pressures are colliding with different expectations and working styles of younger lawyers. Many clients no longer want to pay for legal services in the traditional way, leading to more fixed fees and consultancy style law firms. Many lawyers no longer want to work in a ‘traditional firm’ and financial rewards for very long hours are less appealing. Law firms need to keep pace with these changes if they are to recruit and retain the best talent.
In light of this some firms are re-evaluating how they assess employee performance. Magic circle firm Clifford Chance is piloting a scheme in its Dubai and Abu Dhabi offices where the number of hours a lawyer has billed will not affect their overall performance and bonus. The firm will instead focus on how lawyers have ‘adopted the firm’s wider strategy’, Matthew Layton, Global Managing Partner said, ‘With this pilot, we are trying to break the dominance of that single metric.’
At LawCare we think it’s time to rethink the billable hour, and look to new innovative ways of measuring efficacy and success.
LawCare CEO Elizabeth Rimmer started her working life as a solicitor specialising in clinical negligence before moving into the charity sector. She has been managing and developing mental health charities for over 15 years.
LawCare provides emotional support to anyone in the legal profession. We run a free confidential helpline for all branches of the legal profession with calls answered by trained staff and volunteers who have first-hand experience of working in the law. We also have a network of peer supporters and offer workplace training. For more information on what LawCare does, how we can support you in creating a mentally healthy workplace and for additional information, resources and factsheets visit www.lawcare.org.uk If you need emotional support call our helpline on 0800 279 6888.