As Layoffs Loom, How Much Control Do Associates Have Over Low Billable Hours?

While billable hours remain low at transactional practices across the Am Law 100, associates are feeling the pressure to get their hours up as “performance-related” cuts threaten to end their employment.

Asked in a recent American Lawyer survey what they would change about the legal profession to benefit their mental health, just as many associates seemed to lament their inability to bill a full day as the number who are grinding under a pile of work. None of the survey’s roughly 1,500 associate respondents lauded their firm’s ability to deliver a steady workload that didn’t threaten to invade their personal life or put them on the chopping block as demand peaked and plummeted.

“During slower periods, I feel constant pressure that I will be under my billable hour expectations, and it is difficult to relax and enjoy my free time,” said one DLA Piper associate. “On the other hand, when I am billing enough hours to meet my annual requirement, the amount of work that I am doing makes it difficult to maintain relationships in my personal life.”

Other associates had similar complaints. “Billable hour targets are not within your control, completely unpredictable schedules,” said one Clifford Chance associate, while a Clyde & Co. associate said the profession needed “less pressure on non-partner lawyers to meet fee and time targets they have no control over.”

As performance review-related reductions remain the preferred method of thinning the ranks at many large law firms, American Lawyer looked into just how much control associates have over their hours, as well as ways some associates may avoid being laid off.

Minimal Control

When he started at an Am Law 100 firm as a junior associate, the creator of the Instagram legal meme account BigLawBoiz (who asked to remain anonymous to speak candidly) said he had effectively no control over his billable hours. The whole seniority structure functions is akin to trickle-down economics, he said: “Juniors have no say over the amount of work you want to do or can do. You’re stuck with whatever’s left or can be done. To get around that, you can ask partners directly or take charge on different matters. But if you’re a first-year, that’s really tough to pull off.”

Associates in American Lawyer’s recent mental health survey also indicated that the downturn in transactional work has prompted hoarding, or more senior lawyers keeping billable hours for themselves rather than delegating to protect their status at the firm. More experienced lawyers are also under more pressure to bill hours when demand slows, said BigLawBoiz, because their rates are higher.

Some of the hoarding BigLawBoiz experienced had more to do with holidays than economic fluctuations, he noted. Seniors and midlevels tended to delegate less at the beginning of the year in order to be able to work less over the holidays, meaning juniors had to bear the reverse schedule.

Major, Lindsey & Africa partner Stephanie Biderman said she’s speaking with associates who have very little work trickling down to them currently. “That part isn’t really in their control, unfortunately.”

Billable-hour hoarding is inevitable due to law firms’ penchant of setting targets (and strong incentives for hitting them) that don’t account for fluctuations in the economy, said Lauren Krasnow, a leadership coach and former Big Law associate. It can also hurt the partners who may still be hitting their hours to the detriment of the lawyers they’re supposed to be training.

“They feel tremendous pressure to have their hours higher, but there’s not a way to do that. They can’t snap their fingers and have a new client in the next month or two,” Krasnow said. “A lot of times, that leaves a partner feeling a lack of engagement—not living with integrity and doing what they want to do, training and mentoring younger associates.”

Meanwhile, associates on the hunt for more hours are stressed over job security, and some may internalize the predicament as a personal failure.

“If you’re a fourth-year getting let go and you’re told it’s performance-based and you were crushing it the three years prior and now you don’t have hours, you’re now questioning, ‘did I not get hours because I was not a good associate?’” said BigLawBoiz. “It can impact your psyche, whereas if a firm says we overhired, you don’t have that lingering over your head anymore. Most other companies are better about that.”

However, not only are some law firms incentivized to not cop to making layoffs to avoid bad press—they’re also incentivized to not tell associates whether they’re underperforming or at risk of being fired because they want to remain flexible with their head count amid economic uncertainty.

“The associates we’re speaking to are not being told very much,” said Biderman. “It’s more like ‘keep doing what you can,’ and there’s not much transparency there because firms are not quite sure what they want to do yet.” Anecdotally, Biderman said some firms are hoping to hold off on more layoffs until Labor Day, hoping the economy improves by then.

Winning the Waiting Game

Associates with low billable hours can start by making themselves available to anyone who might have work. For BigLawBoiz, a litigation associate when the pandemic hit, that meant reaching out to other practices and ultimately finding capital markets work as court closures hamstrung his primary practice.

“You can’t just sit at home and do nothing when they’re paying you over $200,000 a year,” he said. “If you’re truly in a situation where you’re nervous, reach out to practice groups that are slammed.” And although it gets harder to pivot to a new practice the more senior a lawyer gets, there’s usually first- and second-year due diligence to be done somewhere.

Recruiters and consultants also emphasized the importance of forming relationships with partners on their preferred territory—the office. “For one thing, I’d be there every day of the week. None of this working at home,” said Mark Santiago of SB2 Consultants. “Go to your practice leader or office managing partner and let them know you’re there and available. ‘I’ll do anything, I’m committed’—that type of thing, as opposed to sitting at home.”

Astute associates may also leverage the disconnect some partners tend to feel with younger millennials and Gen Z associates by simply introducing themselves and asking a partner to coffee or lunch.

“I have some clients where they tell me the younger lawyers need to be explicitly taught: Here’s how you go talk to a partner. It sounds so basic and arguably remedial, but people who fail to understand that associates grew up in a different time are going to be frustrated,” said Krasnow.