If you ask attorneys in private practice to identify their biggest complaint related to law practice, most will probably respond with one word — billing. At the same time, clients are likely to identify billing as their most serious concern associated with obtaining legal service. The irony in clients and attorneys sharing frustration over hourly billing relates to the fact that the initial interest in hourly billing stemmed from attorneys’ desire to maximize their earnings and clients’ preference to pay only for the actual time expended on the client’s behalf.¹

Since the 1960s, hourly billing evolved as the dominant billing method used by non-contingency fee attorneys. As hourly billing became more widespread, the number of billable hours expected of firm attorneys dramatically increased as billable hours clocked and business generated assumed greater importance in evaluating attorney contributions and compensation. In the last two years the number of billable hours expected of associates increased along with the hikes in associate salaries.² To gauge the effects of increasing billable hour requirements, a mail survey of associates in Texas law firms (the Associate Survey) was sent to a random sample of 1,000 associates who (1) had been licensed for 10 or fewer years as of June 1999 and (2) who were identified on the State Bar of Texas membership files as working in private law firms with more than 10 attorneys. The questionnaire was designed to obtain objective data on billing practices, the effects of hourly billing pressure, and firm culture.

This article reports the empirical information from the survey. The second part, which will be included in the January 2002 issue, discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.

Respondents’ General Profile
The vast majority of respondents (92 percent) indicated that they were associates on the partnership track. The remaining respondents checked “staff attorney not on the partnership track” (3 percent), part-time attorney (1 percent), contract attorney (1 percent), and other (3 percent). The respondents’ tenure with their firms ranged from 11 percent who had been with their firms for less than one year to 4 percent who had been with their firms for more than seven years. The median tenure was 32 months, and the median age of the respondents was 32 years old. The median income of the respondents was $82,418.

The respondents worked in Texas firms of varying sizes. Exactly half of the respondents worked in firms with more than 100 attorneys (Large Firms), 27 percent worked in firms with 25-100 attorneys (Medium Firms) and 21 percent worked in firms with 11-24 attorneys (Small Firms).

Billing Pressure
Eighty-four percent of the respondents reported firm annual billable hour expectations for associates. Of that number, the mean annual billable expectation for associates was 1,961 and the median was 1,980 hours. The results indicated that the average minimum billing expectation generally increased with firm size. At the same time, a smaller percentage of Large Firms required more than 2,100 hours as compared to Medium Firms.

The income of respondents appears to be related to the number of hours billed. The mean number of hours reported billed increased as income increased. This suggests that pre-tax income, including bonuses, relates to the number of hours billed by associates. The study results do not support the commonly held belief that attorneys in the largest firms bill the most hours. A cross tabulation between the number of hours that respondents reported billing and the size of respondents’ law firms revealed that the average annual hours billed by those respondents in Medium Firms was 2,120, compared to 2,079 hours reported by respondents in Large Firms and 2,028 hours reported by respondents in Small Firms.

Time vs. Partnership
During the last 20 years, the pressure to work longer hours created a kind of “time famine” for attorneys. Commentators and practitioners both rail at the steady escalation in billable hour requirements.³ Because of the time commitment and other work pressures, many attorneys find it difficult to achieve a healthy balance between their work and personal lives. As explained by Professor Patrick J. Schlitz, working 60, 70, or even 80 hours a weeks to produce 2,000 hours per year “leaves room for little else in the attorney’s life.”⁴ As a result, those things that give most people “joy and meaning — family, friends, hobbies, the arts, recreations, exercise — are absent from the attorney’s life.”⁵ While the general labor population also struggles with growing demands to balance work and personal life, the intense time pressures inherent to the legal profession magnify the problem for many attorneys.⁶

The survey results reveal that 66 percent of the respondents report that billable hour pressure had “taken a toll” on their personal lives. Predictably, the percentages reporting that billable hour pressure had taken a toll increased as billable hour requirements increased and as the number of hours worked increased.

When asked to describe how billable hours pressure had taken a toll on the respondent’s personal life, 95 percent noted, “I have less time for my friends and family.” Twenty-five percent reported: “I have more trouble sustaining an intimate relationship than I used to.” Another 20 percent checked “other.”⁷

These results suggest that a large percentage of respondents recognize that partners generally must commit more time than associates. One participant in another study described the dilemma: “It’s like a pie-eating contest where the first prize is all the pie you can eat.”⁸ Believing that law practice only gets more stressful, some associates may not even aspire to win the partnership trophy. Among the survey respondents, only 8 percent identified “full partner participation” as the professional goal they were most interested in attaining. Those associates who do not aspire to partnership may feel particularly dissatisfied about paying dues and making personal sacrifices as associates.

Dissatisfaction
A 1990 ABA Young Lawyers Division (YLD) study identified increases in hours worked and the resulting decrease in personal time as a major cause of attorney dissatisfaction.⁹ Ten years later, the levels of satisfaction found in the Associate Survey are very similar.¹⁰ In the Associate Survey, 32 percent of the respondents reported that they were “very satisfied” and 47 percent noted that they were “somewhat satisfied.”¹¹ When asked to describe the morale among associates at their firms, 10 percent of the respondents indicated that morale was “excellent”and 43 percent checked “good.”¹²

These results appear to conflict with reports and anecdotal information on widespread associate dissatisfaction and low morale.¹³ From a psychological standpoint, individual respondents may be engaging in a form of denial if they are indeed dissatisfied with their work, but refuse to admit it. Another possibility is that attorneys tend to complain about their work conditions. Still, the most obvious explanation for the reported high levels of satisfaction relates to the high salaries that large firm associates were receiving at the time of the survey.¹⁴ In the Associate Survey, no respondent making $125,000 or more checked “very dissatisfied.” While high salaries may improve reported satisfaction levels, the reports of high salaries may actually deepen the frustration of those associates who earn lower salaries. In the Associate Survey, the largest percentage of associates who reported that they were “very dissatisfied” were those respondents making less than $50,000.

In analyzing the validity of the satisfaction/dissatisfaction responses, responses to other questions should be considered. Specifically, questions asking about interest in changing jobs and careers shed light on the relative satisfaction of the respondents. In response to the question, “Are you interested in changing employers during the next two years?” 39 percent of the respondents checked “yes.” Of those respondents, 22 percent indicated that they were interested in a “non-legal job.” Similarly, 26 percent noted they “strongly agree” or “somewhat agree” with the statement, “I wish that I had selected a profession other than the law.”¹⁵ These results suggest that a percentage of those respondents reporting some level of satisfaction with their current firm would nonetheless like to change positions, or even careers.

Stress and Distress
The mere mention of billable hours to a firm associate might cause the attorney’s blood pressure to rise. This image helps capture how billing pressure causes stress. In this context “stress” refers to “the experience in which physical or psychological demands trigger bodily or mental tension or reactions that disrupt a person’s psychological or physiological equilibrium.”¹⁶

Generally speaking, stress lowers the immune system, making a person more susceptible to illness.¹⁷ Stress contributes to heart disease, migraine headaches, and colitis.¹⁸ More common physical symptoms of unrelieved stress include nervousness, chest pains, stomach problems, and fatigue.¹⁹ From the standpoint of mental health, unrelieved stress can cause anxiety, inability to concentrate, shortened attention span, difficulty focusing on tasks, avoidance, and “burnout.”²⁰ More serious effects include depression, anger, exhaustion, and chronic fatigue.²¹

When asked to describe how billable hours pressure has taken “a toll on your personal life” 18 percent of the respondents checked “I get sick more often than before I worked for the firm” and another 20 percent checked “other.” Many of the descriptions portray associates whose lives are consumed with work and worry about billable work. The largest number related to the lack of balance including no time for exercise, vacations, hobbies, personal interests, or other non-work endeavors. The second largest number of descriptions referred to feelings of stress, anxiety, and unhappiness.

Fifteen percent of the respondents strongly agreed with the statements, “I feel stressed and fatigued most of the time.” Another 36 percent noted that they “somewhat agree” with the statement.

Quality of Work
The quality of legal service suffers when stress results in an inability to concentrate, shortened attention span, difficulty in focusing on tasks, and avoidance.²² According to Dr. Isaiah Zimmerman, a Washington D.C. psychologist who specializes in counseling attorneys and judges, the “casual link between high levels of stress and lowered performance is well documented.”²³ “It is reasonably safe to conclude that attorneys who have a poor response to stress, who fail to address the cause of their stress, will lower their level of performance and thus greatly increase the risk of committing error.”²⁴ Thus, long work hours and stress increases the likelihood of professional malpractice and discipline,²⁵ especially in work environments in which junior attorneys’ work is not properly supervised.

Short of professional misconduct, long work hours may undermine an attorney’s ability to provide the quality of service that clients deserve. Professor Judith L. Maute contends, “lawyers who work in excess of 60 hours a week on a long-term basis may be physically present, but their minds cannot operate at peak efficiency. They cannot produce good value for each hour of billable time.”²⁶

The majority of the respondents in the Associate Survey recognize that long work hours can impair critical thinking. Twenty-two percent of the respondents “strongly agreed” with the statement, “Working long hours adversely affects my ability to think critically and creatively.” Another 42 percent indicated that they somewhat agree with the statement.²⁷ Those associates who take pride in doing quality work may feel particularly frustrated if they believe that they must work long hours to succeed at the firm, but fear that working long hours negatively affects their ability.

The Quantification Of Private Law Practice
Commentators and associates alike have bemoaned the trend in firms that emphasizes the quantity of billable hours over the quality of work performed. As described by Dean Anthony T. Kronman of Yale Law School:

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1. An ABA study concluded that attorneys who use time records to formulate their attorney’s fees made more money than those attorneys who did not. Stephen W. Jones & Melissa Beard Glover, The Attack on Traditional Billing Practices, 20 Ark. Little Rock L. J. 293, 293-94 (1998). Reportedly, corporate managers and members of the business community welcomed hourly billing because it enabled them to “correlate the ‘product’ that they were buying to the products that they themselves produced and sold.” William G. Ross, The Ethics of Hourly Billing by Attorneys, 44 Rutgers L. Rev. 1, 11 n. 64 (1991).
2. As explained by a legal recruiter, as salaries continue to increase, firms face increased pressure to justify these higher expenses. Lauren Eaton Prescott, The Verdict Is In on the Great Pay Hike, Tex. Law, March 6, 2000, at 3.
3. “Most law firm managers contacted agreed that increasing hours and the resulting time pressures posed a serious profession but considered their own expectations to be reasonable ones.” Nancy D. Holt, Are Longer Hours Here to Stay? A.B.A. J. Feb. 1993, at 62.
4. Patrick J. Schlitz. Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 83 Minn. L. Rev. 705, 725-26 (1998).
5. Id. at 726.
6. Ammee McKim, Comment, The Lawyer Track: The Case for Humanizing the Career Within a Large Law Firm, 55 Ohio St. L.J. 167 (1994).
7. The percentages on the ways that billable hour pressure had taken a toll exceed 100 percentage because respondents checked all items that applied.
8. NALP Foundation for Research and Education: Keeping the Keepers: Srategies for Associate Retention in Times of Attrition 106 (Jan. 1998) [Keeping the Keepers Report].
9. Deborah K. Holmes, Learning from Corporate America: Addressing Dysfunction in the Large Law Firm, 31 Gonz. L. Rev. 373, 398 (1995-96).
10. In the 1990 YLD survey 33 percent of the respondents indicated that they were “very satisfied” and 43 percent indicated that they were “somewhat satisfied.” ABA Young Lawyers Division, The State of the Legal Profession 52 (1990).
11. In response the question that asked, “Overall, how satisfied are you with your current job?” 16 percent indicated “somewhat dissatisfied” and 5 percent marked “very dissatisfied.”
12. Thirty-three percent of the respondents noted that morale among the associates at their firms was “average,” 13 percent rated morale as “poor” and 2 percent rated morales as “very poor.”
13. The results also do not show a statistically significant relationship between hours billed and job satisfaction or hours worked and job satisfaction.
14. A commentary on a 1999 Associate Quality of Life survey captured the impact of recent salary increases in stating that the “overall exuberance of the associates … shows how far a few thousand dollars goes.” Angela Ward, The Money Talks, Large Quantities of Case Improve Associates’ Quality of Life, Tex. Law., Oct. 4, 1999, at 3.
15. This percentage breaks down to 8 percent who “strongly agree” with the statement and 18 percent who “somewhat agree” with the statement.
16. Leslie I. Messelman, Maintaining Balance: Stress Management for Lawyers, Colo. Law., Feb. 1996, at 13.
17. Arline Kaplan, Implications of Stress, Psychosocial Factors on the Immune System, Psychiatric Times, Oct. 1999 (visited Nov. 21, 2000) http://www.mhsource.com/ pt/p991059.html.
18. James J. Alfini & Joseph N Van Vooren, Is There a Solution to the Problem of Lawyer Stress? The Law School Perspective, 10 J.L. & Health 61, 65 (1995-96) quoting Joan Myerson Shrager, The Bottom Line on Lawyer Stress, 13 Legal Econ. 22 (1987).
19. Christopher T. Borgeson & Elizabeth M. Link, Stress Management: Minimizing the Risk of Malpractice ­ Is Stress Affecting Your Competency? 2 NO. 3 Legal Malpractice Rep. 11, 12 (1991).
20. Id. at 12.
21. Messelman, supra note 16, at 14 (referring to signs or symptoms of stress).
22. Borgeson & Link, supra note 19, at 12.
23. Id.
24. Id.
25. In one such disciplinary case, the Supreme Court of Oregon attributed the respondent-attorney’s misconduct to “emotional difficulties.” In re Conduct of Lowe, 642 P. 2d 1171, 1174 (Or. 1982). The respondent’s psychiatrist testified that the respondent suffered from “burnt out syndrome.” Id.
26. Judith L. Maute, Balanced Lives in a Stressful Profession: An Impossible Dream? 21 Cap. U. L. Rev. 797, 814 (1992).
27. Of the remaining respondents, 12 percent indicated that they neither agreed nor disagreed, 17 percent indicated that they somewhat disagreed, and 6 percent “strongly disagreed.”
28. Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 302 (1993).
29. Elena S. Boisvert, Is the Legal Profession Violating State and Federal Consumer Protection Laws? Prof. Law., Nov. 1997, at 1, 4.
30. David B. Wilkins & Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 Va. L. Rev. 1581, 1594 (1998).
31. Id. at 1594-69.
32. Lisa G. Lerman, Lying to Clients,138 U. Pa. L. Rev. 659, 674 (1990).
33. Sixteen percent noted that they strongly agreed with the statement and 30 percent indicated that they somewhat agree with the statement that billing pressure causes ethical and competent attorneys to leave private law practice. Thirteen percent checked that they “somewhat disagree” with the statement and another 10 percent noted that they “strongly disagree.”
34. William G. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys 63 (1996).
35. Id. at 261 (referring to one 1991 survey respondent who stated that he and most other attorneys who regularly bill more than 3,600 hours per year do not perform unnecessary work or exaggerate their hours).
36. The 64 percent includes 41 percent who “somewhat agree” and 23 percent who “strongly agree” with the statement.
37. Four percent checked “strongly disagree” and 6 percent checked “somewhat disagree.”
38. Training and supervision become non-revenue producing activities when clients refuse to pay for time devoted to those activities. Schlitz supra note 4, at 743.
39. Id. at 740 (asserting that the “extraordinary pressure to bill hours is almost single handedly responsible for the death of mentoring”).
40. Id. at 741.
41. This percentages break down to 18 percent who “strongly agree,” 25 percent who “somewhat agree,” 24 percent who “somewhat disagree,” 18 percent who “strongly disagree” and 15 percent who neither agree nor disagree.
42. See, e.g., Michael Goldhaber, Waging a War of Attrition, Nat’l. L. J., Dec. 13, 1999, at A1 (quoting the manager of Akin, Gump, Strauss, Hauer & Feld L.L.P., who said, “high attrition is the single biggest-cost factor that can be averted).
43. Gerald L. Holt, How to Keep Talent from Walking, N.Y.L.J., Jan. 12, 1999, at 5.
44. William G. Johnson, Seeing Red? Managing the Cost of Associate Attrition, Law. Prac. Mgmt., May-June 1999, at 45.
45. Id.
46. Keeping the Keepers Report, supra note 10, at 14.
47. Timothy Harper, The Best and Brightest, Bored and Burned Out, 73 A.B.A. J. 28 (1987). Those who remain in stressful work situations may be those without job options and those who commit themselves to private law practice, possibly at the expense of their personal life.
48. The agreement/disagreement percentages break down as follows: 16 percent checked “strongly agree,” 26 percent checked “somewhat agree,” 23 percent noted “somewhat disagree, “ and 17 percent noted “strongly disagree.” Eighteen percent checked that they “neither agree nor disagree.”
49. Another 15 percent indicated that they “somewhat disagree” and 8 percent noted that they “strongly disagree.” Fifteen percent indicated that they “neither agree nor disagree.”