Across virtually every occupation, employers have developed ways to communicate expectations to employees and to subsequently track their contributions. For a store clerk, it may be a shift calendar and a punch clock. For a salesperson, it may mean sales goals. For law firms, the billable hour—that commonly used, and just as commonly reviled, measure of client hours worked—often serves as the principal means by which to measure the contributions of their lawyers and apportion compensation. It's long past time for a fresh look at billable hour requirements.

Before you stop reading, let's be clear that this is not another article foretelling—or seeking to hasten—the death of the law firm billable hour requirement. It won't happen for a long time, nor necessarily should it. Used appropriately, billable hour standards can set clear expectations for lawyers and supply a dose of objectivity to measuring their contributions, ensuring that comparable work receives comparable reward. For instance, a lawyer who has had an extraordinarily busy period of firm or client work should be recognized and compensated accordingly.

But there are pitfalls. The legal profession is rife with examples of billable hour requirements gone bad. Too common are the stories of law firms with published hours ­requirement, and then a de facto set of often much higher hourly expectations to advance or demonstrate commitment. The latter, of course, are not communicated with clarity and candor at the outset of employment. The result can be a law firm stocked with discontented employees who feel bait-and-switched into striving to meet obligations exceeding what they were led to anticipate. It does not take long for such a law firm to build a reputation as a sweatshop. Further, achieving high billable hours does not necessarily equate to efficiency or quality work or even acceptable realization rates; however, the current billable hours framework often rewards attorneys who are inefficient at the expense of their more efficient counterparts. The result is bad for lawyers, law firms, the legal profession and clients.

Measuring employee performance based on hours billed can also contribute to high-stress work environments—that feeling of Sisyphus endlessly pushing a rock up a hill. The need to meet high hourly requirements can manifest in reluctance to take vacations, consistently working nights, weekends or holidays, hoarding work and even mental health issues. Combine hour requirements with a competitive environment where employees try to outdo one another and the mix quickly turns toxic, supplying truth to the adage that a law firm is a pie-eating contest where the winner gets more pie. Further exacerbating the issue is that this is a profession where lawyers must often work until the project or particular job is done; as a result, many lawyers will often refuse to leave tasks unfinished, even for short periods of time.  The outcome is predictable—lawyers burn out, retention suffers and work quality suffers. Indeed, this cycle is a leading cause of the pervasive mental health problems that lawyers struggle with.

Fortunately, the problems that can accompany billable hour requirements are tractable and avoidable. Transparency is an indispensable baseline to making the billable hour work well. Law firms must be clear about expectations—the real ones.  State them up front. Better yet, provide current and historical statistics such as average hours worked per lawyer per week, month and year, ideally by office location, department and seniority. In the absence of firms standing by publicized expectations, this data would provide a window into any divergence between stated requirements and reality. Prospective hires have a role to play as well—they should be asking concrete questions about expected workload and hours, and demanding concrete answers.  And the firm representatives who field those questions should have the courage to answer candidly. This board is confident that the benefits of increased transparency—including happier lawyers, better law firm working environments and, ultimately, more satisfied clients—would soon follow.

While this board believes real and honest transparency would be a good start, we are under no false illusions that transparency alone would solve the issue of attorney burnout or prevent the development of mental health ­impairments or substance-abuse issues deriving from unsustainable hours targets in the legal profession. This profession is certainly a taxing one, and we have written before about attorney well-being. Legal jobs, including most notoriously Big Law jobs, require a significant amount of time, energy and effort from lawyers. But we cannot solve the problem of overtaxed lawyers if the profession is not willing to start by being honest and candid about the expectations and standards that lawyers will be held to. Simply put, it is not fair to lawyers or legal organizations to have a stated minimum billable requirement of 1,900 and communicate that minimum number as if it were the expectation, if, in reality, the functional expectation is much higher than that.

There are a number of other measures that can be undertaken to provide flexibility to attorneys. While legal organizations have moved to provide more flexible parental leave policies in recent years, more flexible schedules could be implemented on a broader basis for attorneys that are trying to achieve additional balance in their schedules for a variety of reasons. The legal profession is a service industry, which now means that lawyers are often on call at all hours of the day and night, and we recognize that there is a real and perceived pressure to be available at all times. That said, there is no reason that the legal industry cannot adapt to part-time lawyer schedules in the same way that virtually every other industry has done.

Moreover, legal organizations should implement better methods of valuing non-billable, firm citizenship time. Every legal organization requires a significant number of administrative tasks, including internal meetings, marketing meetings, recruiting meetings, client development, mentoring, etc. While law firms often have some non-billable billing number that attorneys can "bill" this time to, this time does not usually count toward the minimum billable number, and attorneys are required to "make up" those hours on evenings, weekends or holidays. In an industry where the most efficient attorneys bill only 75% or 80% of their time, this amounts to hundreds of extra hours per year. This discrepancy can particularly impact women and minority attorneys, who will often bear heavier burdens on administrative tasks, especially in recruiting or in managing diversity and inclusion efforts at their firms. Likewise, time that attorneys spend on pro bono matters should unequivocally count toward their billable requirements.

In short, when it comes to billable hour requirements, this board believes that increasing transparency, setting realistic expectations, and applying fair standards to measure all hours worked will lead to happier lawyers, better retention rates, more satisfied clients and a better measure of the true contributions that employees make to their firms.

The views expressed here are personal to the authors and do not represent the opinions of their employers.

Board Members: Aaron Swerdlow, Alex Tarnow, Andrea Guzman, Andrew Warner, Aydin Bonabi, Bess Hinson, Blair Kaminsky, Brianna Howard, Brooke Anthony, Emily Stedman, Emma Walsh, Garrett Ordower, Geoffrey Young, Heather Souder Choi, Holly Dolejsi, Jennifer Yashar, Jessica Tuchinsky, Ji Hye You, Josh Sussberg, Kevin Morse, Kyle Sheahen, Lauren Doyle, Martina Tyreus Hufnal, Mauricio Espana, Nicole Gutierrez, Peter Buckley, Quynh Vu, Rakesh Kilaru, Reggie Schafer, Sakina Rasheed Foster, Sara Harris, Shishene Jing, Tamara Bruno, Tim Fitzmaurice, Timothy Perla, Todd Koretzky, Travis Lenkner, Trisha Rich and Wyley Proctor.

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