Changing Culture Through Repetition

Dana Walters, associate editor of The Practice, spoke with Paulette Brown, former president of the American Bar Association and a coauthor of the ABA report, Legal Careers of Parents and Child Caregivers, to talk about the recommendations laid out in the report.

Dana Walters: What were the most surprising findings from the report regarding the challenges faced by parents and child caregivers in the legal profession? How do these challenges differ between different subsets of legal professionals?

Paulette Brown: There were not any really big surprises. There were some disappointments. And the disappointments centered around why this is still going on. It centered around the notion that expectations of women have not changed that much over time. It was disappointing that some judges still fine lawyers for being late when they have childcare responsibilities. It was disappointing that there were some people who didn’t have children who almost resented parental leave—thinking that it was a vacation. In a law firm context, I found it not surprising that men are generally applauded when they have children and they assume parenting roles. But the one thing that was interesting to me was that there was no difference if men were in a same-sex relationship or a heterosexual relationship—men still got preferential treatment.

On a positive side, it felt like there was an evolution in how men talked about parenting. Many men said that when they are with their children, it’s undivided time and undivided attention. They don’t let other things interfere.

But there were also women who had transitioned from law firm to in-house—in part for more flexibility—who clearly understand the challenges of being a caregiver. And yet, some of them confessed to demanding answers 24 hours a day from their law firms, exerting the same pressure they were under when they were in law firms to the lawyers with whom they were working. In many situations, those lawyers appeared to be remorseful, and the assumption is that pressure probably came from the top down, so that’s an organizational problem.

Walters: After a comprehensive survey and focus groups, at the end of your report, you make 13 recommendations—both for firms and for other legal organizations and for lawyers. Could you pick out one or two and talk about their importance? 

Brown: For individual lawyers, we discovered that many people had no idea what the details of any policies related to parental leave and flexibility available at their organizations were. One recommendation is to educate yourselves on what your organization’s policies are and find out whether they go beyond what’s legally required. In addition, you should educate yourself on the implementation of the policies. Are they just on paper? Who’s using these policies? Find out if there are high-ranking individuals who have used these policies. That makes a difference—whether what’s happening on paper is also happening in practice.

From an organizational standpoint, we recommend the flip side of this. Flexibility is really important. A lot of people talk about the billable-hour requirement. But at this point in time, getting rid of the billable hour may not be realistic. What can we do now? With regard to the policies that we do have, make sure that people understand what options are available. And then, leadership should lead by example. If you have the managing partner of the firm articulating on a regular basis and reminding partners that these are our policies—we are going to enforce these policies, and we do expect you to not be biased against individuals who use these policies—it makes a world of difference. If you get that consistent message from the top down, then people will start to be more in tune with it and caregivers will likely feel more comfortable taking advantage of the policies.

I see success when people start talking about the things that I’ve been educating them on as though it’s their idea.

Paulette Brown, former ABA president

Walters: How do the recommendations address not only policy changes but also the cultural shifts needed within the legal profession? 

Brown: Over the course of presenting this report, many lawyers asked us, “Why do you have to tell people the same thing over, and over, and over again?” The truth is: because you do. My mother would always say, “It bears repeating.” Ongoing and consistent education is important.

I remember the chair in my old firm asking me, how did I see success? I said, “I see success when people start talking about the things that I’ve been educating them on as though it’s their idea.” Because then you have had a shift in culture. You can forget it was my idea. Just do it. I think that when people understand the learnings about not being biased, when they repeat these learnings, particularly to others without giving attribution to the educator—when it becomes their idea, to me it means they’ve got complete buy-in. Success.

Walters: Sixty-five percent of those surveyed in the report were law firm lawyers, and law firm lawyers certainly face unique challenges when it comes to parenting and caregiving—including the culture around billable hours and hierarchy—and yet, as you point out interestingly in the report, law firms also sometimes have more concrete policies around sponsorship and leave policies. How does this report speak to and respond to the unique considerations of both women in law firm settings versus those who practice in other settings?

Brown: We also looked at the academy, which has different rules for different subsets of law teaching staff. Obviously, if you are a tenured professor, you have the most flexibility, but it was the tenured professors who highlighted the disparities for the clinical or nontenure-track staff. Institutions need to look broadly as to how those who are not tenured are the most adversely affected. Because they are not able to speak out. Even if there are policies in place, they’re less likely to talk about them being enforced. People who are in leadership roles should take a closer look at whether there are distinctions that are being made and how people are treated based on their position in the law school.

In government, that gets to be a little more tricky, as you can imagine. Lawyers talked about how they thought that it would be easier for them to transition from law firms to government. But then, some of them found that, no, that wasn’t the case, because government can be more rigid. They actually have defined hours when you must be present—for example, from 9 to 5. Whereas if you’re in a law firm, so long as you get your billable-hour requirement in, you can leave in the middle of the day to go to a doctor appointment or pick your child up after school. And in government, you cannot. There’s that rigidity in government with regard to actual time one must be physically in the office and not so much in the law firm context or even in-house.

When you’re in a solo practice, obviously you can control a lot of what you do. But you also have other considerations. You have your adversaries who may set scheduling time tables, knowing that you’re about to give birth and not able to comply, for example, and the same could be true with some judges in how they treat solo practitioners. There’s a lot of educational opportunities for the judiciary with regard to solo practitioners who are caregivers who don’t have a backup system per se. There has to be flexibility in terms of scheduling and making sure that the adversary is not abusive.

Many people said to us, “Well, people have gone into solo practice because of their experiences with caregiver responsibilities in large firms.” But it’s a balance—a solo practitioner can adjust their own hours, but then there are other potential compromises.

I believe personally that my responsibility in this—what I can do as an individual—is to check in and find out what’s going on. Have things changed? 

Paulette Brown

Walters: Now that you’ve released this monumental report, what comes next? What else does the ABA Commission do to help support lawyer parents and caregivers, and how does the ABA track efforts to make culture change? 

Brown: I’m reasonably certain that the ABA is not going to track whether the recommendations are being implemented. I think that it is up to me, and the other coauthors, to find out what’s going on and to find out whether any of the recommendations are being implemented. I do know the Commission on Women will continue to elevate the report and its recommendations through webinars and seminars. Additionally, I remain very close to the Association of Law Firm Diversity Professionals. I believe personally that my responsibility in this—what I can do as an individual—is to check in and find out what’s going on. Have things changed? Offer suggestions, and then offer alternatives to suggestions. Find out whether people are taking this seriously, whether they’ve read it, whether they’ve read pieces of it, or whether they’ve at least read the recommendations.

Hopefully the more it gets publicized as to what’s going on and how difficult it can be for lawyers who are parents and caregivers, particularly women, then I think more people will become knowledgeable regarding their role as to how to best support them. But you have to make certain that you’re not talking to the same people all of the time—“preaching to the choir.” You’ve got to make sure not just law firms know about the report and its recommendations, but that in-house people know about it, that government knows about it. There are challenges in every area, and there are positives in every area as well, and how do we communicate this, and how can people be better allies, not merely performative allies, in this space as well. Ongoing education concerning biases is key. Most people do not want to think of themselves as being biased. They want to do better and be better.

Walters: Well, I think that’s a positive way to wrap things up. Thank you so much for your time.

Paulette Brown was the president of the American Bar Association from 2015 to 2016. She was a coauthor of the report Legal Careers of Parents and Child Caregivers. She is a principal and cofounder of MindSetPower.

Dana Walters is the associate editor of The Practice.