Can flex-time really work?
Finding Predictability in Flexibility
by Donna Gerson

Deborah Epstein Henry, founder and president of Flex-Time Lawyers LLC®, speaks to Student Lawyer’s Donna Gerson about the competing demands placed on lawyers and how to find the right balance between work, family, and a personal life. The mother of three school-age children, Henry is working to change the way law firms do business.

Deborah, what motivated you to become a lawyer?
I took a psychology and law class at Yale when I was a junior because of my interests in both psychology and law. As a result, I decided to do my senior thesis on the psychological motivations and conflicts of a criminal defense attorney, testing the broader theory of how I would, as a lawyer, represent a client I might not believe in. I spent a year interning for a criminal defense firm and developed a thesis of six major defense mechanisms and strategies that I believed criminal defense attorneys developed in their work. It was a fascinating year.

Did you go to law school directly after college?
No. For two years I worked as a paralegal in the Manhattan District Attorney’s Office.

Did you find that working as a paralegal before law school was helpful to you?
Yes. I felt that it gave me a practical understanding of criminal law.

What were some your favorite classes in law school?
I liked the practical classes such as trial advocacy, appellate advocacy, and mediation. The more theoretical classes were not as interesting to me; however, I believe if you have a great professor, it doesn’t matter what you are taking. In college, I took classes like Greek history because they were taught by phenomenal professors and, to me, that was the most important thing. For example, there was an outstanding products liability professor at Brooklyn Law School who could bring any issue to life.

Where did you work your first summer?
I spent my first summer clerking for Judge Edward Korman of the Eastern District of New York. It was an unpaid internship, and I received pass/fail credit as part of a larger clinical program administered by Brooklyn Law.

Where did you work your second summer?
I was a summer associate at Weil, Gotshal & Manges, a very large New York–based firm.

What was your first job after you graduated from law school?
Following graduation, I clerked for two years in the Eastern District of New York for Judge Jacob Mishler.

You had your first child during your clerkship. How did that work out?
It was actually very manageable. It was the second year of my clerkship, and my judge was very gracious when I told him I was pregnant. Because of his senior status on the court, he had a reduced workload and the other clerk was able to manage it while I was on leave. The hours were predictable and I went back full time to finish my commitment.

What brought you to Philadelphia?
My husband had a career opportunity and we decided to move. I was pregnant with our second child when we moved to Philadelphia. I started interviewing and I joined Schnader Harrison Segal & Lewis LLP as a litigation associate in the fall of 1997.

Your company, Flex-Time Lawyers, is a national consulting firm that advises law firms, corporations, lawyers, and law students on work/life balance and on the retention and promotion of women lawyers. What prompted you to create this company?
In 1999, I had been practicing law for five years and I had two small children. I had worked full time in New York with one child, first in my clerkship and then with Patterson Belknap Webb & Tyler LLP. In Philadelphia, I worked reduced hours—about a 75 percent schedule—which was working out to about a 40-hour workweek.
I found that even with the reduced hours and flexibility, I spent a lot of time trying to figure out how to establish that elusive balance in my life. At Schnader, there were three other reduced-hour lawyers in the litigation department and we often would talk about how to make it work. I thought it was valuable to compare notes about successes and challenges.
I decided to e-mail the three Schnader litigators and three other lawyers I knew to start a brown bag lunch group for lawyers interested in work/life balance issues. I announced the first meeting would be at my firm in July of ’99 and encouraged recipients to forward the invite to anyone they knew who might be interested. Within a few days, 150 people e-mailed me back, and I knew I had really struck a nerve.

Does your company focus exclusively on women’s issues?
No. I have always opened my programs to both men and women. It’s predominantly women with young children who have gravitated toward the organization. However, whenever I have a participant who is a musician or an athlete or someone else who is trying to prioritize work/ life balance for reasons other than parenting, I celebrate them. The issues that we discuss at the meetings have really morphed into more than just work/life issues. I would say about half the issues we focus on are women’s issues generally. On the work/life balance side of things, in order to make change as a profession, we have to focus on prioritizing work/life balance for all lawyers.
This is not a women’s issue. If it continues to be thought of as a “mommies’ issue,” then we are not going to make the same sort of progress. With both male and female Generation Y lawyers seeking more balance and technology making it increasingly difficult to delineate lines between work and home, that’s really what is going to change the picture.

The legal profession is client driven. It’s often 24/7. How can you square flexible hours with a client-driven business?
There are two issues. Lawyers who want better work/life balance are often saying that they want different things. As a starting point, you have to try to zero in on what lawyers want. Some lawyers want the freedom to work flexibly and the billable hour enables that because the firm generates the same revenue if you’re billing at home in your pajamas after you put your kids to bed or if you are in the office. That’s the luxury of the billable hour. Other lawyers want flexibility and predictability. In my opinion, the single greatest source of work/life dissatisfaction is the lack of predictability in lawyers’ schedules.

Can you solve the problem of predictability (or lack thereof) in lawyers’ lives?
In an article I authored last summer, I suggest that it’s time for job shares in law firms. In many respects, the job share is the ultimate answer for addressing that feeling, as I put it, that you are never “off call.” It’s an accepted practice in the medical profession that one doctor steps into another doctor’s shoes when you’re dealing with patients’ lives. What I mean by that is that if your doctor is off call and you have a medical emergency that is a life or death matter, the doctor’s partner steps into his or her shoes and handles the procedure or the operation. If this practice is accepted for doctors when dealing with patients’ lives, it is really incomprehensible that we cannot accept that lawyers can step into each other’s shoes at law firms to address clients’ legal problems. Job shares can be established where each lawyer on the team is responsible for half the week’s assignments. That way, lawyers can have more predictability in their lives and know that when they’re off call, there is someone else in charge.

That’s great in an ideal world, but it hinges on two equally talented lawyers with the same view and a client that accepts that this is the way the case or the transaction will be run.
The reality is, in certain venues it is already happening. When you have a large litigation matter, you already have a team of lawyers who are working on the case and you are already dividing up responsibilities. A job share lends itself naturally to this scenario because you already have lawyers who have to exchange that information and keep each other apprised about the same matter. Another great venue for job sharing is small departments like a trust and estates, real estate, or family law department. Here the matters are smaller, it’s easier to get up to speed and often lawyers are already informally stepping into each other’s shoes to cover for each other.

Why should law firms care about the issue of flexible hours?
An employer offering flexible and reduced-hour policies provides a very significant retention tool. If a talented lawyer wants flexible or reduced hours, it is in the firm’s financial interest to meet their request because the cost of attrition is so high. It costs a law firm, by conservative estimates, $200,000–$500,000 to lose a second-year associate. These numbers are particularly staggering because, typically, second-year associates are not profitable and most lawyers don’t start asking for flexibility until they have been practicing for at least a few years.

Are flexible or part-time work hours the kiss of death for a lawyer?
If you’re a talented and creative lawyer and your employer is also creative and wants to retain and promote you, there are a lot of ways to skin a cat, as they say. I don’t view flexible work hours as an accommodation and I also don’t see them as an entitlement. If you are talented and if you can fill a need that’s in the employer’s interest, then the decision is an economic win-win. It’s important that you conduct yourself as a professional, be responsive and accessible, meet your deadlines, and turn out top-notch work. If you can do that, then your employer will benefit.
It’s important to note that lawyers will want different things at different times. There are some lawyers who work reduced hours who want more predictability, and they understand that the quality of their work assignments may be impacted for a period of weeks, months, years. There are others who are gunning for partnership and expect high quality work but want to work reduced hours, and they understand that they might be eligible for partnership consideration a year later. You can’t generalize that all reduced-hour lawyers are the same. They are people who want different things at different points in their lives, and the risk in generalizing is missing the important subtleties.
The word that comes up so often when you’re talking about reduced-hour lawyers is “commitment”—specifically, whether these lawyers lack it. I laugh. I think what many reduced-hour lawyers have to do to get their work done in the course of a day involves so much more commitment than many realize.

What’s your typical workday like?
I get up at 5:30 a.m. and either work out or write because I like to write in the morning before the phone rings and e-mail starts buzzing. Then, I get my kids up for school beginning at 7. From about 7 to 9, I make breakfast and make lunches and go to the bus stop, and then I’m back home, where I try to work as much as possible between 9 and 3:30 p.m. Then I go back to the bus stop and try to take off from 3:30 to 8:30 p.m. During this time, I’m checking my BlackBerry to make sure nothing is pressing. If I have more work and my husband is traveling, I will often work or check in at a minimum after my kids are in bed. Usually three or four days a month I travel for work when I am not following that routine, and those are my “off call” days. I am either in New York for the day, consulting onsite with clients, or giving speeches, so there may be an overnight or two. Overall, I try to mirror my kids’ schedule and work school hours or when they are asleep.

Do you have child care help?
Yes, I have had the same babysitter for nine years. She works for me three afternoons a week plus extra hours when I’m traveling.

What advice do you have for law students who are interviewing for either summer or full-time jobs? Are questions about flexible or part-time hours off limits?
It’s not that students shouldn’t ask certain questions. Rather the focus should be on whom they ask and when they ask those questions. What you want to do initially is get the job offer and you need to be in sales mode. In other words, you must convey what a terrific asset you would be to the prospective employer. If you know graduates of your law school, or family or friends who may be able to give you the inside scoop, those are the people you ask. What I would be careful about is asking the hard questions of the hiring partner. That’s not somebody that’s necessarily your friend in this process before you have the offer in hand.
Once you have the offer in hand, that’s really the opportunity to start finding out the answers to the harder questions. Still, you always have to be guarded because if this is a place you do ultimately go to work, you don’t want to embarrass yourself.

In terms of asking for flexible hours from an employer, can you shed some light for law students as to when this is appropriate?
My experience is—and I’ve counseled thousands of lawyers on this—people don’t typically ask for the flexibility until they’ve gained some experience. It’s easier to negotiate flexibility once you have. Typically, lawyers will begin to request flexible or reduced hours in their third year and up. That’s generally a time frame that I think works. Most firms offer reduced hours to their lawyers, but for first-years and incoming lawyers, the same policies are not always offered. The distinction is it’s often better to gain experience, prove yourself first, and let firms know how valuable you are before you start negotiating flexibility.

Flex-Time Lawyers recently conducted an inaugural national survey in partnership with Working Mother magazine that culminated in a list of the “Best Law Firms for Women.” What prompted you to create this survey?

My principle motivation for approaching Working Mother about conducting a national survey on work/life and women’s issues was the stagnation of women in law firms. I have watched as the numbers of women being retained and promoted in law firms has remained exceedingly low. I considered the different pressure points to effect change in the profession. I concluded that we can’t make change until there are appropriate measures and benchmarking in place. Working Mother magazine has conducted a national survey for 22 years of the best companies for working moms. I proposed narrowing the survey to law firms only but broadening it to focus on all women’s issues and work/life balance, which also applies to working dads and others with the need for flexible work schedules.

What criteria did you use to rate the law firms?
We developed a survey with approximately 500 questions, and we broke up the survey into six principle areas: First, workforce profile, meaning representation of women at all different levels. Second was benefits and compensation. Third was parental leave and related policies. Fourth was child care and related policies. Fifth was flexibility. And the sixth was retention and advancement of women. Within the retention and advancement of women section, we addressed issues including leadership, mentoring, business development, compensation, women’s initiatives, and promotion to partnership.

What’s the feedback been like from the survey?
It’s been really interesting. There has been tremendous excitement in that this is a significant step in benchmarking where we are. Every participating firm received a scorecard which was a snapshot of where they ranked in the six sections of the survey compared to other firms. We also released statistics that identified work/life and women’s trends in the profession that create objective standards for firms to measure themselves against and determine what else they need to do to measure up. This is giving firms information that they need and invigorating the dialogue about the importance of work/ life and women’s issues.

Where do you see yourself in five years?
A book about work/life balance and women’s issues in the legal profession is in my future. I really am excited about doing work with law students. I think there’s a lot of promise in working with law students and it’s a focus that will continue for me. I also plan to expand the “Best Law Firms for Women” initiative to make it an even greater competitive pressure point for law firms. I will continue to explore expanding Flex-Time Lawyers into a national resource for lawyers, law firms, and law students across the country. 

Deborah Epstein Henry Résumé Highlights
Education
Yale University, B.A. (1989)
Brooklyn Law School, J.D., cum laude (1994)
Moot Court Honor Society
Articles editor, Brooklyn Journal of International Law

Work Experience
Law clerk, The Honorable Jacob Mishler, U.S. District Court for the Eastern District of New York (1994–95)
Associate, Patterson Belknap Webb & Tyler LLP (1996–97)
Associate, Schnader Harrison Segal & Lewis LLP (1997–2001)
Of counsel, Schnader Harrison Segal & Lewis LLP (2002–present)
Founded Flex-Time Lawyers LLC (1999)

Admitted to Practice
Pennsylvania (1997), New Jersey (1997), New York (1995), Connecticut (1994)

Informational Interviewing
Informational interviewing allows you to learn about different practice areas and gain an understanding of professional demands and expectations from a practitioner. Your career services office should have resources about informational interviewing and guide you through the process. NALP has published a brochure, The How-Tos of Informational Interviewing, that your career services office should carry. (If not, you can order it at www.nalp.org by clicking on “bookstore.”)

Reading and Resources
• The 2007–2008 NALP Directory of Legal Employers contains statistical information about law firm demographics, including numbers of men, women, and minority partners and associates. Available in your career services office.
• The Lawyer’s Guide to Balancing Life and Work , Second Edition, by George W. Kaufman, is written to help lawyers achieve professional and personal satisfaction in their careers. Available at www.ababooks.org.
• The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction, by Michael F. Melcher, is a self-help and career-management book for lawyers of all levels of experience. Available at www.ababooks.org.
• “The Cheat Sheet,” by Flex-Time Lawyers and the New York City Bar, a guide for law students to gauge the success of law firms in hiring, retaining, and advancing women, includes a resources section listing numerous valuable online sources that address general work/life and women’s issues. Available at www.flextimelawyers.com, on the Women & Work/Life Articles page.

Another Perspective on Flexible Work Hours
Linda R. Hirshman, lawyer and author of Get to Work: A Manifesto for Women of the World, questions whether flexible and part-time work hours are doing women attorneys a disservice in the long run. While women aren’t the only ones seeking flexible schedules and part-time hours, they are a large majority of this group. “When men start doing it, it’s a good idea . . . but when I see a social behavior that overwhelmingly impacts women, alarm bells go off,” notes Hirshman. “I’m not against the idea of flexible work hours or part-time arrangements, however when it’s directed primarily at women it begins to feel like a sexual caste system.”
In Get to Work, Hirshman outlines rules for women to consider regarding education, work, marriage, and children when entering the business world. Hirshman is also the author of Hard Bargains: The Politics of Sex and A Woman’s Guide to Law School. For more information, visit www.gettoworkmanifesto.com.

"Finding Predictability in Flexibility" by Donna Gerson, published in Student Lawyer, Volume 36, No. 4, December 2007.  ©by the American Bar Association.  Reprinted with permission.

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