Opting Out of Law Practice and Opting Back In

Volume 29 Number 5

By

M. L. Sam Ruckwardt runs a litigation practice in Portland, Oregon. Prior to March 2012 she was an associate attorney in an insurance defense firm.

In the past decade there has been an increasing focus on the number of professionals who “opt out” of their careers for various reasons. This was first publicly addressed in an article for the New York Times entitled “The Opt-Out Revolution” (October 26, 2003), in which journalist Lisa Belkin suggested that women were making an empowered choice to “opt out” of their careers. Although this New York Times piece focused on mothers exiting their careers, this is not an exclusively female, or an exclusively parental, choice.

In my eight years of private practice, many of my colleagues have left the law for some period of time. Some, primarily women, reported that they are leaving to spend more time with their families, while others bravely and honestly reported that they are taking time off because they can no longer stomach their current firm or their practice. Remarkably, four of my fellow associate attorneys left our relatively small firm in the past two years without any plan whatsoever. Upon discussion, I learned that these particular male and female attorneys left because they found legal work and the firm environment dissatisfying.

In light of the available statistics, my experience is not unique. As we all know, both male and female attorneys leave the practice of law for varying periods of time in the span of a career for myriad reasons. Some attorneys leave for good, but most exit with the intent of someday reentering the law, and most do return successfully.

 

Why Take the Off-Ramp?

Becoming a lawyer takes an increasingly large investment of time and money. So why, after completing college, sitting for the LSAT, getting into law school, completing law school, and passing the bar exam are attorneys willing to throw it all aside and exit the career they worked so hard for? The most common example of attorneys leaving the practice of law is the young attorney who takes time off to raise children. And who primarily raises children? Women. Accordingly, women who have children have the ready-made, widely accepted and understood justification to leave a legal career. On its face this example makes sense, but looking behind this choice, there are other motivators for such an exit.

Opting out of a career path—or “off-ramping”—is a choice disproportionately taken by women versus men. Because of this, the studies that examine opting out typically look exclusively at women. Such studies often point to gender bias or outright discrimination as possible motivators for a female professional to leave her chosen profession. As few studies look at men exiting the legal profession or taking time off, it is unclear if non-gender-related issues are underlying lawyer off-ramping in general.

One study looking just at female professions was conducted by the Center for Work-Life Policy in 2005 (Sylvia Ann Hewlett, Carolyn Buck Luce, Peggy Shiller, and Sandra Southwell, The Hidden Brain Drain: Off-Ramps and On-Ramps in Women’s Careers, Cambridge, Massachusetts: Harvard Business School Publishing Corporation, 2005). This study highlighted the fact that women attorneys are more likely than other female professionals to opt out. Some 42 percent of women lawyers leave their career for a period of time, versus 37 percent of all women professionals. Not surprisingly, women professional in general cite children as a reason for such off-ramping. What is surprising is that the top two reasons given by exiting women lawyers were “lack of career satisfaction” and “feeling stalled in their careers.” More than half of women lawyers cited these as the two major factors in their decisions to off-ramp. When professionals, male or female, feel underutilized, underappreciated, and unfulfilled, their ambitions turn to frustration and they leave. This dissatisfaction is apparent in that a mere 3 percent of the female lawyers who exit with the intent to return to work are interested in rejoining the firms that they left.

Professional factors faced by attorneys may attribute to these numbers. Prior to the economic downturn of 2008, many young attorneys traditionally entered private-sector law firms. Although women may be just as likely as men to start their careers in law firms, the majority do not stay. Since the 1990s, women have made up more than 40 percent of all law firm associates, but female associates disappear on the path to partnership. In 2003 women attorneys accounted for only 16 percent of law firm partners, and only 5 percent of managing partners (DRI, A Career in the Courtroom: A Different Model for the Success of Women Who Try Cases, 2005). Women leaving these law firms go somewhere, and some go home, staying out of the profession.

Female associates may not be leaving the legal practice entirely by choice. Instead of opting out, some studies suggest women attorneys are pushed out. The conclusion of a 2006 study of the “opt-out issue” is that most women who leave the practice of law do not do so willingly. Although they are not overtly excluded or terminated, they are pushed out of the practice “by workplace inflexibility, the lack of family supports, and workplace bias against mothers” (Joan C. Williams, Jessica Manvell, and Stephanie Bornstein, “Opt Out” or Pushed Out?: How the Press Covers Work/Family Conflict, The Center for WorkLife Law, University of California, Hastings College of the Law, 2006. Workplace inflexibility and bias against working mothers can logically be attributed to the belief that a flexible workplace would be less profitable for the business owners, or firm partners, at least in the short term.

Traditional law practices have been inflexible by nature. A ready example of this inflexibility is the billable hour regimen that rewards attorneys who work long hours in an office. As with any business, private law practices are designed to make money. In law firms, money generation is still primarily based on the billable hour. As any of us who have worked in such a system knows, the billable-hour revenue unit can be the source of much anguish. Billing by the hour requires lawyers to work on a stopwatch and track productivity minute-by-minute while recording sufficient detail to support the charged fee. Focusing on billing every 0.1 hour can be dispiriting for male and female attorneys alike, and it can result in a devaluing of attorneys who are billing less owing to non-work commitments. If the focus is on how many hours are billed per month, there cannot be a genuine appreciation for part-time or reduced-hours attorneys, even if it is known that the reduction is only temporary. What may start as a planned temporary part-time attorney schedule may in reality result in devaluation and dissatisfaction that leads an attorney to opt out entirely.

The effect of workplace inflexibility was highlighted in a much-publicized and controversial article in The Atlantic by the departing director of policy planning at the U.S. State Department, Anne-Marie Slaughter. In this article, titled “Why Women Still Can’t Have It All” (July/August, 2012), Slaughter described that she chose to leave her “foreign-policy dream job” because she could not reconcile the demands of this job with the pull she felt to be closer to her children. She departed, not because she felt she “needed” to be home with her then-teenage sons, but because “deep down” she “wanted” to be home—she wanted to be able to spend time with her children in the last few years before they left home. Although Slaughter had a relatively flexible academic position to return to, many attorneys seeking such personal satisfaction do not have flexible work options and thus opt to leave the profession altogether.

Flexible work may have become even more elusive over these past few years. Since the economic downturn, short-term profitability has become increasingly important. Many private-sector legal practices have eliminated attorney positions and have not had the perceived luxury of making workplaces more flexible. Many attorneys, male and female, feel fortunate simply to have a job and are in no hurry to initiate discussions of how to make their workplace more satisfying. Firms, businesses, and public entities began to lay off attorneys rather than focus on how to keep talent. As a natural consequence, talent will continue to exit.

 

Where Is the On-Ramp?

Although there is no widespread solution to prevent attorneys from opting to take a hiatus, it is known that these exiting attorneys often find their way back into practice. Upon exiting, the overwhelming majority of attorneys state that they intend to return to the practice of law. And, in fact, the majority of attorneys do return. According to the 2005 report cited above from the Center for Work-Life Policy, of the 42 percent of women lawyers who stopped working in their career for a period of time, approximately two-thirds ultimately returned to the workforce, and the average time away from the legal profession is three years. What type of legal work they return to is not entirely clear.

For many attorneys contemplating leaving the practice for any period of time, an overwhelming concern is: How do you get back in? Taking time off is an obvious risk, as is starting one’s own law practice or transitioning from one job to another. And this is a risk that cannot be ignored. According to the same 2005 report, although 93 percent of women exiting their careers intend to rejoin the workforce, only about three-quarters of them actually do. On average most lawyers who want to return successfully do return, but there are undeniably barriers to returning to law.

As law is a rapidly changing field, attorneys who exit for any significant period of time need to get back up to speed prior to reentry. Getting up to speed often involves continuing legal education courses and networking. Some state bars have programs designed to help returning attorneys complete bar requirements and initiate the reentry job search.

In addition to knowledge, reentry requires confidence. In particular, female lawyers who leave careers to raise children or care for family members often don’t feel confident enough to jump back in despite a desire to do so. This intimidation may be heightened in today’s tight economy, where more attorneys than ever are looking for work. To initiate a job search under these conditions may be overwhelming, but returning attorneys have the advantage of having some experience to market—regardless of how remote that experience may be.

It is common sense that reentry may be easier if the exiting attorney maintains contacts and keeps up on changes in practice areas during the hiatus. Keeping current on the law reduces the time needed to get back up to speed. Perhaps more importantly, current knowledge can add that boost of confidence needed to seek out and find the nearest on-ramp to resuming a legal career.

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