Law Firm Management

The Year Was 1995

One of the many nice things about being retired is that I feel free to write about topics that I would not have had the guts to speak up about back in the day. So, here we go again!

The year was 1995. It was one of my first forays into law firm management. I helped develop our firm’s first ‘maternity leave’ top-up policy and presented it at a partners meeting. We were getting a bit of buy-in, but that ground to a halt when one of our partners said, “let me get this straight. The people who come to work every day are not earning nearly enough (author’s note- we were never earning ‘nearly enough’) and you want us to earn even less so that we can subsidize people who are not coming to work at all?  Seriously?  You are all f**king crazy!” 

Heads (all male) nodded around the table. And that was the end of that particular initiative.

I was thinking about this the other day when my friend Marc, who is a partner in a small law firm, reached out to me to ask what financial accommodation would be fair for Marc’s firm to offer a lawyer who was about to take parental leave.

I had some problems with the question.

The first was that, as is the case with beauty, fairness is in the eyes of the beholder.   What may be considered to be fair by a prospective parent may be impacted by all sorts of factors, including their personal financial situation, other supports available to them, how favourably they view their past relationship with the firm, what they know about the firm’s profitability, and how the firm’s offer compares to their understanding of what is ‘market’ (possibly defined as what their best friend was just offered by their firm.)

On the other hand, if I put myself in Marc’s shoes, I could probably make a fairly convincing argument that the responsibility for offering financial support to prospective parents (beyond Employment Insurance) properly belongs to the government, society in general, or the prospective parent and their life partner, if they have one, and that it is not ‘fair’ to impose that obligation on private employers.

I suspect that having Marc debate with his valued Associated what is ‘fair’ is likely to be spectacularly unhelpful to the firm.

But, more importantly, I thought that Marc was asking the wrong question.  What is ‘fair’ is completely irrelevant. The correct question to ask when thinking about whether the firm should ‘top up’ parental leave benefits is, “what are the firm’s business goals in this situation, and how can they be achieved?”

The typical business goals that a law firm will have when a lawyer is taking a parental leave will include one or more of the following:

  1. to encourage the lawyer to go above and beyond to help with a smooth transition, including the transfer of files and assisting others to take on their job responsibilities.
  2. to make the lawyer more amenable to part time work during the leave, and to facilitate a discussion as to how to accomplish that.
  3. to encourage the lawyer to return to work sooner.
  4. to foster loyalty (which is in short supply in the legal profession) so that the lawyer will be encouraged to return to the firm after their leave, and to remain with the firm over the long term.

Rather than fixating on what is ‘fair,’ the firm should think about what its goals are, and the extent of the investment that it is prepared to make to achieve those goals.

Next, the firm should think about what process is most likely to achieve the desired results. This may include considering: 

  1. what research is required to prepare for this process. Presumably one important task is to determine what is ‘market’ in the firm’s area.
  2. whether the firm should conduct this process itself or with the assistance of an experienced human resource professional.
  3. how will the firm determine what the lawyer’s expectations are?  What will the expectant parent consider to be adequate? What will they see as generous?  A good discussion is likely required, but the firm has to think about who the best person would be to engage the prospective parent in this discussion. Should it be one of the partners, a human resource professional, or a combination of both?

Marc is a partner in a small firm addressing the issue for the first time. They do not have a written policy and the prospective parent is a high performer. The expectations of both parties are unknown, and it is very important to the firm that they handle the issue well.

At the opposite end of the spectrum would be a large firm with a written policy that is intended to apply equitably to every lawyer (and other employee) who is a prospective parent. A one-size-fits-all solution for a very personal situation.  A policy which must be seen as competitive in the marketplace, but that could also be a point of differentiation in attracting talent.

The whole area is a minefield for law firms to navigate. Be very careful. It is easy to screw this up, and there are plenty of people eagerly waiting to tell you that you have done so.

This article (with the expletive deleted) was originally published by Law360 Canada, part of LexisNexis Canada Inc.

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