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Flexibility: does it work?

News

Cite as: (2008) 82(9) LIJ, p. 18

Law firms are introducing more flexible work arrangements but a new report says there are some negative repercussions for women lawyers.

“There have been times . . . when I didn’t see my children awake for a month and a half.”

This sobering reflection by a male partner in an Australian law firm is just one of the insights into the life of a corporate lawyer that has been revealed as part of research into flexible work practices.

The researchers, Australian National University College of Law professor Margaret Thornton and La Trobe University PhD candidate Joanne Bagust, have concluded that corporate law firms are resistant to the idea of work/life balance, despite their espousal of the theory.

“The only acceptable balance for them seems to be work/work,” they said in their paper, The Gender Trap: Flexible work in corporate legal practice.1

And the authors said the work culture of long hours had detrimentally affected the career prospects of part-time workers, who were mainly women.

While flexible work policies had been accepted and even embraced by law firms, a new “feminised underclass of lawyering” had emerged, they said.

Women working part-time were likely to be assigned to mundane work known as “knowledge management” rather than cutting-edge work involving corporate clients.

“It is argued that far from being a panacea, flexible work is being invoked to confine women to subordinate roles and to restrict access to partnerships,” the report said.

“It would seem that flexible work represents just such an Achilles’ heel in the strategies of women lawyers’ associations and their supporters, for it can be selectively invoked to confine women with family responsibilities to the pyramidal base of the legal hierarchy.”

A total of 50 mainly senior male and female lawyers from 10 large and medium corporate law firms were interviewed in 2005 and 2006 as part of research for the Gender Trap report.

Monash lecturer in health and human rights and LIJ bi-monthly “According to Merit” columnist Liz Bishop said the Gender Trap paper was a valuable contribution to the debate about women lawyers, providing further confirmation of the difficulties faced when they worked part-time.

Ms Bishop has written a thesis on what has changed for Victorian female lawyers between 1996 and 2006 and concluded that “real change to the male constructed legal profession to recognise and promote the difference of women has not been achieved”.

“Not surprisingly, many women who have been agitating and working for change in the legal profession feel disillusioned and unsure that the entrenched culture of the legal profession can be altered,” she said.

Justitia Lawyers partner Sarah Rey has found a solution that works for her by setting out on her own and eventually forming a Melbourne-based firm with Mary-Jane
Ierodiaconou.

Ms Rey works four days a week and Ms Ierodiaconou tailors her hours to her workload, intermittently working four days a week. Together, they have successfully developed a niche law firm which also has an office in Sydney.

Ms Rey told the LIJ that a key to their success had been developing a “collegial environment” at the firm where lawyers shared both information and clients.

“No-one is ever available 24 hours a day,” Ms Rey said.

“And our clients get the benefit of several minds looking at their matter because we communicate internally and pick each other’s brains and do a lot of peer review in terms of the work we do for clients.”

She said having supportive staff – Justitia has a total of 10 solicitors and support staff in its Melbourne office – also helped her to work more flexibly.

Ms Rey, who has three children aged 10, seven and one, said she generally managed to work from 9.15am to 5.45pm four days a week, but would work after-hours if there was an urgent turnaround for a client.

“We think we are more energetic in our work because we are not working a full working week,” she said.

Ms Rey had previously worked four days a week at the former medium-sized firm, Dunhill Madden Butler, where she was a partner, and at Blake Dawson Waldron where she was special counsel.

She said she never felt any undue pressure to go full-time or to work in a different way at these firms.

But she has found her work to be more rewarding now that she has her own firm, having achieved more flexibility in her hours and more control over the type of work she does and over her work environment.

However, part-time does not suit everyone, including LIV Councillor, Aurora Kostezky.

Ms Kostezky, who works in commercial leasing, started working part-time at Hunt & Hunt two-and-half years ago after the birth of her first child and had built up
to four days a week, including one at
home, when she became pregnant with her second child.

Despite Hunt & Hunt being accommodating and flexible, the part-time arrangement did not work for her personally.

“I wasn’t prepared to slow down in the way part-time necessarily entails,” said Ms Kostezky, who recently started working full-time at Minter Ellison as a senior associate.

“I couldn’t stand to see something that I had worked for effectively be put on hold.”

Ms Kostezky moved to Minter Ellison seeking a new challenge, and said she “relished” and appreciated being able to work full-time.

A major part of Ms Kostezky’s decision was that her husband, Michael Newburn, was at home full-time to care for their children and agreed to do so until they were both at primary school.

“He could see that I was unhappy doing that part-time treadmill that you do when you have got young children,” she said.

“He said: ‘If this is going to make you unhappy, I am prepared to stay at home full-time.

“I am extremely fortunate that my husband has been willing to support me in this way.”

Ms Kostezky said she believed that communication and a good working relationship with work colleagues were key factors in making a part-time arrangement work.

“All the policies in the world don’t mean anything if you haven’t got the relationships on the ground to make it work,” she said.

Victorian Women Lawyers convenor Christine Melis said there was a genuine acknowledgment by managing partners of law firms that flexible work arrangements could be achieved in a better way, and that it would positively affect retention rates and economic viability.

“Requesting a flexible work arrangement is not about asking for a favour,” she said.

“This person should not be viewed as any different from the perceived ‘superwoman’ who does it all, but who is more often than not supported by nannies and the economic means to hire help.”

This opinion on flexible work arrangements has also had echoes in the Human Rights and Equal Opportunity Commission’s 2008 Gender Equality: What matters to Australian women and men – listening tour community report. [See “Listen and learn”, page 82 of this edition of the LIJ.]

Ms Melis said the Gender Trap report made flexible work practices a gender issue, which it was not.

“It is a societal issue,” Ms Melis said. “There are men as well as women within the law who wish to work flexibly, whether it be for better quality of life, family responsibilities or to pursue other interests.”

The Gender Trap report said there was “no serious talk” about flexible work practices for men in corporate law firms to enable them to share in childcare, which was still seen as a female endeavour.

“Even if male lawyers want to participate in the raising of children, the cultural constraints militating against doing so are immense,” it said.

“Those who do must hide their longings from their colleagues’ gaze.”

A female senior associate told the authors that one part-time male lawyer who did not do billable work was “seen as a bit of
a wimp”.

Even a father going home “early” at 5.30pm to see his children was construed negatively by his colleagues, according to the report.

The report said the demands of globalisation and competition, and the expectation and belief that lawyers had to be constantly available, was a major part of the problem.

“Everything has to be done instantaneously, so there is an expectation that lawyers should be available, which directly challenges the idea of part-time work,” it said.

But Andrej Kocis, 37, who has worked four days a week since joining boutique Melbourne law firm Greenfields Financial Services Lawyers as special counsel in October last year, was adamant it could work.

“The perceived difficulty that a lawyer can’t work part-time because they need to be there all the time for their clients – and that if you are not there is a lack of continuity and lack of client contact – all of those are no more than perceived difficulties,” he said. “They are not real.”

Mr Kocis, who pursues photography on his spare day, said he was available to his clients on his day off, if needed.

“But it rarely infringes on that day off so much that it’s not effectively a day off,” he said.

“So I do take calls from clients and if necessary deal with them on that day but it is never an imposition.”

Mr Kocis, who works in superannuation, said he believed he was a “more rounded person” as a result of his part-time work.

“I do feel more fulfilled, if you can put it like that.”

Former Blake Dawson partner Jodi Fullarton-Healey, who worked four days a week before recently taking on a full-time role as deputy general counsel at the ANZ, said she enjoyed hearing about men who worked part-time.

“We actually need more men to do this . . . as soon as men start to do work part-time, other men will see them doing it and they will see that it can work,” she said.

“A lot of guys say to me: ‘I’m really jealous. I wish I could do four days like you’ and I say: ‘Why don’t you? Just do it and give it a go’.

“People seem to think that you should only be able to do it if you have a legitimate reason and the most obvious legitimate reason is childcare responsibilities. I just don’t agree with that.”

Ms Fullarton-Healey, a mother of a five-year-old and three-year-old, was already a partner when she started working part-time after the birth of her first child.

She has managed to work part-time despite being a transaction lawyer, where the hours can be notoriously long.

But Ms Fullarton-Healey said the idea of “part-time” was relative to what a person considered full-time.

She admitted she often worked on her “day off” on Wednesdays – either going into the office or doing some work from home. For this reason, she had a nanny for half a day on Wednesdays “just in case”.

“In many respects I was spreading four long days over five not so long days,” she said.

Ms Fullarton-Healey said she was happy with the balance she had achieved, managing to work 8.30am to 6pm on her work days about 80 per cent of the time.

But there were times when she had to work 6 am to midnight.

LIV Part-time Lawyers Network chair Meg Clancy said the Gender Trap report reinforced in her the fact that flexible work issues were linked with the culture of long hours in the law.

“Full-time is a fluid concept and people are working such ridiculous hours as a de rigueur thing that working to a fixed amount of time is seen in a negative light,” she said.

The 29-year-old Gadens lawyer works three of her five days to 2pm and uses those afternoons to pursue writing.

Ms Clancy said the success of part-time arrangements generally depended on the individual lawyer and the rapport they had with their direct superiors, rather than firms taking an across-the-board approach.

Overall, the Gender Trap report says equality for women lawyers is “more elusive than ever” and it dismisses the argument that it is “just a matter of time” before women are equally represented in the legal profession

But it does offer some hope, saying different attitudes held by Generations X and Y could deliver generational change. Generations X and Y were less obsessed with work than baby boomers. They did not expect to remain with the same employer indefinitely, they found overly specialised legal work monotonous and repetitive, and were aware of the high levels of dissatisfaction in the legal profession that had given rise to stress and depression, the report said.

“The ‘pot of gold at the end of the rainbow’ – a million dollar-plus partnership within an elite corporate firm – did not compensate for giving up on a life,” the report said.

Ms Melis said that in her discussions with Melbourne law students, it was clear that they were “acutely aware” of the long hours culture and strict billing practices of corporate lawyers and that “this is not an environment they want to be entering”.

Mr Kocis agreed: “I do sense in Generation Y – certainly in relation to the articled clerks I was supervising – there is among them a belief that they won’t be working those sorts of hours and that they will be pursuing other things at some point in their lives reasonably early on, whether that be some sort of part-time arrangement or doing something else altogether.”

Ms Clancy also believed the upcoming generation had different expectations: “A lot of my colleagues, and people a few years younger, definitely see flexible work as a priority.”


1. Published in March 2008 in the Canadian Osgoode Hall Law Journal. See http://ohlj.ca/english/documents/03thorntonafterproduction.pdf.

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