Managing Primal Instincts and Long-Standing Doctrine: The Attrition of Young Lawyers (Part One)

By Cheng Shing Chow (e: shing@firstcapital.asia)

Part 1: https://www.firstcapital.asia/managingprimalinstinctspart1
Part 2: https://www.firstcapital.asia/managingprimalinstinctspart2
 

Facing Off: ‘Culture’ As A Much Abused Concept, Greenhorn Managerial Behaviour, Bottomline-Driven Survivability and the Changeability of Personality

 

“We know the problem… [but] there are more pressing and time consuming problems of bottom line survival.’

“I have serious problems with hiring and retention and I don’t know what else I can do. It’s the same everywhere.’

(Senior Lawyers) 

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“We do not know how else to manage, we were never taught. We learnt by ‘growing up’ this way. We have tried – they keep leaving.”

“We don’t have the emotional and lifestyle balance support and flexibility we need from above. In turn, we cannot also give the same to those below.”

“It is the survival of the fittest: the tough survive, and the tough has little work-life balance, and can tolerate onerous datelines and take on ever increasing emotional burden and mental stress. I can take it and therefore I remain in the industry.”

(Mid-level lawyers)

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“Firms don’t walk the walk. They haven’t tried hard and long enough or simply are unable to emphasize support and care despite having gone through the same experiences previously ’.

(Junior Lawyers)

 

In the many conversations in person and over email pursuant to my earlier articles Retention of Young Lawyers (2006)[1] and Revisiting the Attrition of Young Lawyers in Singapore (2022)[2], the above points have been regularly, clearly and expediently put across to me. Such statements (read: accusations) impliedly and betrayingly evince an inability on the part of law firm management to consistently enact and enforce policies to timely spot and support those who believe they are over-worked and emotionally drained. Seasoned practitioners bemoan their helplessness at the sheer impossibility of hiring and retention, and at the lack of guidance – even a clear vocabulary – of a subject to them too sweepingly labelled ‘the (terrible) culture of (necessary) legal practice survival behavior’. 

 

Statistics straddling 20 years provide justification for this seemingly rife pessimism from two industry groups: those who will no sooner leave, and those who are staying forever – 58% of <7PQE lawyers in 2006[3] leaving the practice industry, versus ‘nearly 60%’ In 2021[4] of <5PQE lawyers doing the same. These  statistics evince a far higher exit rate for Singapore lawyers compared to other jurisdictions.[5]     

 

To countermand this seemingly dire climate of despair, my essay in two parts puts forth three principles in an attempt to frame a viable solution for a law firm practice. All three require conceptual understanding and acceptance on individual and group psychology that are non-native to legal practitioners. Most critically, it requires of the mid-level to senior lawyer much needed, specific, impactful execution and self-restraint. The final proposition in Part Two deals with the ‘great challenge’ – the apparent inevitability of ‘throwing inexperienced young lawyers into the deep end of the learning pool’.      

 

The First Principle: Recognizing The Unnatural Bedfellows Within You. The perennial battles, tension and conflict among the Three Personalities any law firm or lawyer possesses to varying degrees

 

1. The Perfectionist Lawyer Personality. The vocation-excelling qualities of a lawyer in an adversarial profession where hostility to the ever-present ‘other side’ is rewarded: perfectionist, risk-averse, deadline-driven, results-obsessed, excellence-pursuing-constant-championing of ‘only the right results matter’, coupled with prizing the client-origination ability of partners (who are largely left to their own devices). Such qualities unintentionally have a carry-over effect unconsciously leading to bad (read: toxic) managerial habits: abrasiveness, passive-aggressiveness, being visibly angry, short with colleagues, no respect for personal time, micro-aggression, rigid micro-managing. 
    

2. The Team-Builder Personality attempting to nurture and retain juniors. The relationship-affirming, keeping-the-team-together personality: patient, forgiving, empathetic, undemanding, non-perfectionist, emotionally supportive and relationship-affirming behavior. Afterall, if there are no hands on deck, there will be no legal service delivery nor fees to be earned.
    

3. The Business-Grower Personality whose large team or firm fee-earning targets (business revenue) constitute his or her most important Key Performance Indicator. This (necessarily) entrepreneurially minded lawyer understands a positive culture is essential for a firm’s likeability, successful hiring and retention and business growth. He or she also understands an unhappy company, with an unhappy culture, can never be good for client-interfacing, client-procurement and retention and overall business growth. Or perhaps lawyer-business growers still (struggle and) get by with an unhappy culture? In this writer’s opinion a positive growth strategy makes for a happier firm and colleagues.  

 

The above is likely to be met with great indignation (by you): “I am a lawyer and he is saying I need to have split personalities to do my job!’.

 

My response may startle lawyer-practitioners: the answer is Yes. You need not go the extent of possessing dissociative identity disorder, but basic inquiries into the greater world of commercial life elsewhere will allow you to discover that bottom-line-driven enforcement, positive motivational charisma and creative empathetic experimentation to generate work-place solutions, are all behavioral tools deployed by commercially successful professionals.

 

As will be elaborated upon later, the successful business (not! rather..) personnel[6] leader often has to be in a ‘mutually embodied interactive dance’ with subordinates and colleagues, where an inbuilt flexibility ‘playfulness’ is required to facilitate change and to establish more suitable patterns of behavior.[7] Yes, you read it correctly: it is a dance implying artistically choreographed steps, encapsulated more primitively by the adage “different folks, different strokes”.

 

How one behaves choreographed, un-instinctively, setting aside primal-logic, as a mid-level or senior lawyer, is a key factor in this solution. One needs to be more flexibly attuned to an environment that requires more empathy and support to junior lawyers, and less reliant on strict zero-sum logical thinking, and actively distanced from the omnipresent mental dark cloud of datelines and client remonstrations.

 

This fundamental need for a more ‘human touch’ in the daily lives of legal practitioners has been recognized by our Chief Justice in 2017:
 

“…at a more basic level, we should not forget that it is ultimately the human touch that leaves the most lasting impact. Partners and senior colleagues in the firms can do much to foster a culture of care and compassion by taking the time and the trouble to speak to their juniors and check how they are coping. By showing that we genuinely care, we are laying the foundations on which rests the future of a healthy and thriving legal profession.”[8]

Writing for Fortune magazine, Deena Shanker blogs in her article ‘Why are lawyers such terrible managers?’:

“For partners looking to hold onto their best lawyers, the solutions may be surprisingly simple: Treat your associates like adults. Involve them in the business of the firm. Don’t be a jerk. Stop yelling. And give positive feedback when it is deserved. As Riskin put it, “You cannot help people perform better by buying a bigger whip and bigger boots.” In other words, if you treat your associates better, they will do better work. Or, as the Schulte associate put it, “It’s not even a question that when I like someone personally, I want to impress them more.”

This approach seems to be working for Munger, Tolles & Olson, ranked by Vault as the No. 1 firm in partner- associate relations and the No. 7 best law firm to work for in 2013. By putting associates on management committees, for example, and sharing the firms’ financial statements with the rank-and-file (usually a privilege only enjoyed by partners), the firm shows some respect to its attorneys and teaches them some business basics. And because the firm uses a “free market system” that encourages associates to find their own work by approaching partners for assignments, partners have an incentive to behave themselves. [9]
 

In the context of today’s local legal practice industry, are such practices conceivable? Especially with the thinning ranks of mid-level lawyers – the so-called ‘generational bridge between junior and senior lawyers’?  The challenge is to change the mindsets of those in charge. At this point, I hear their chorus of ‘But How?!?’

 

How indeed? Beyond behavioral and managerial mental and bodily gymnastics, it is also important to recognize that some individuals cannot be leaders and mentors, while yet others cannot undertake client/sales procurement (but ascension to partnership invariably means being tasked to do all). While I have argued elsewhere that this thinking is archaic: fee-earning, leadership, mentoring, Profit & Loss, and legal technical delivery are all roles that can and should be segregated in part,[10] this industry practice is probably unlikely in the near-term to be changed, mitigated or substituted in any way by a more flexible hierarchy.

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In Why Perfection Stops Entrepreneurial Lawyers Succeeding,[11] the author writes:

 

“As entrepreneurial lawyers we need to re-train our brains to understand the subtle and important distinction between attaining perfection and pursuing excellence”. [emphasis added]

 

The Business-Grower Personality is impeded by a lawyer’s perfectionist mentality which denies experimentation to lead or manage for fear of failure. Consider: how many senior lawyers of 30 years’ experience find it a palatable experience to sit on the same committee as a first year up-start who has well-intended ideas on ‘how the firm should run’? How is the ‘mutually-embodied dance’ to be played out between the two here? Probably after a genuine emptying of preconceived notions and status, followed by a series of patient, mutually edifying dialogues absent of bias and naivety on both sides.

 

In their data-driven 2015 study, What Makes Lawyers Happy? A Data-Driven Prescription  to Redefine Professional Success[12], the authors write:

 

“The most powerful predictors of well-being in these data—autonomy[13] (r = .66), relatedness to others (r = .65), competence (r = .63), and internal motivation for work (r = .55)—are also sources of professional behavior and positive performance in lawyers; lawyers experiencing high well-being are also likely to produce more, remain longer, and raise the morale of others”

 

“A second important strategy for law teachers would be to approach the task of teaching legal analysis with humility, clearly conveying to students that, although this skill will enable them to dispassionately analyze and argue legal issues while setting aside their own instincts, values, morals, and sense of caring for others, such a skill must be narrowly confined to those analytical situations. This is not a superior way of thinking that can be employed in personal life, or even in most work situations, without suffering psychological consequences”.[14] [emphasis added]

 

And in their concluding paragraph:

 

“These data from a large and diverse sample of practicing attorneys establish that the processes governing the well-being and life satisfaction of people generally, as elaborated by Self-Determination Theory research, fully apply to lawyers. Psychological factors related to self, others, meaningful and personally engaging work, and supportive work supervision were far more predictive of well-being than external “success” factors relating to competitive standing, honors, status, or financial rewards. Striking examples included highly competitive and prized achievements such as law review membership and making partner in a law firm, neither of which bore any relationship to the well-being of subjects. Secondary analyses also showed that public service lawyers were happier and more satisfied than other lawyers, including those in the most prestigious, highly paid positions. Further, across the sample, a number of personal routine and lifestyle choices matched or exceeded the power of income, honors, and credentials as predictors of lawyer well-being. Informing law students, lawyers, and their teachers and employers about these findings could serve a number of important goals, including improved well-being, performance, and ethical behavior across the profession.”[15][emphasis added]

 

In other words, from an individual basis and initiative, senior law practitioners require greater self-awareness and deeper understanding (and restraint) of their primal, reactive emotions in order to provide supportive work supervision and create a meaningful and engaging work environment. Emotional Support and Mental Health must always trump Vocational Exceling Qualities, particularly the need to be right, in this mutually embodied dance with co-workers and subordinates. 

 

All the immediate above details How – or at least some of the How ways in this section: recognize the different personality traits in you qualities and switch and deploy appropriate ones only in the right contexts, situations and timings. Try different ways (and give each sufficient time to succeed or fail), keep what works, and jettison what does not.

 

 

The Second Principle: Breaking Down ‘Your Law Firm Practice Culture’ by Distinguishing Agreements, Conventions and Arrangements – An Arena Where Real Feelings and Real Stakes Are Present

 

From a management basis and initiative, Receptivity must always trump an Assumptive Hierarchy. Hiring a third-party to gain proper insight into unspoken, implicit, ingrained and unacknowledged behavior in law firm personnel’s daily conduct is necessary.

 

Admittedly, ‘culture’ is a much-abused term in management theory and science. As the authors Ernst Graamans, Wouter ten Have and Steven ten Have have written in their illuminating article Against The Current: Cultural Psychology and Culture Change Management[16]:  

 

“Disguised as an explanation, culture is often misused as a metaphor, label, or excuse (Voestermans & Verheggen, 2013)’[17] …What people do among each other is determined by real feelings and real stakes, but not by abstractions superimposed upon them.”

 

“Social psychologist John D. Greenwood (1994)[18] argues that an intrinsically social group… is constituted by agreements, conventions, and arrangements (ACAs). The content of emotions such as pride, anger, and shame is best explained, according to Greenwood, with reference to these ACAs”

 

[quoting Greenwood]: “The terms “arrangement, convention, and agreement” are employed to mark increasing degrees of explicit recognition by parties to such forms of association, and to allow for the possibility that non-linguistic animals can engage in forms of social action and constitute social collectives.”[19]
 

Distinguishing Agreements, Conventions and Arrangements takes a bit of thinking and practice. Detecting informal arrangements probably requires a more professionally trained eye to see how they keep people in place.  If one were to plot these terms on the inversely related dimensions of involvement and articulation:[20]

 

1. Agreements are explicit, changeable, debatable, and experience-remote (i.e., low involvement, high articulation). They are easy to articulate and also relatively easy to change: job descriptions, codes of conduct, working hour guidelines, human resource policies… and even statements about “the” organizational culture the company is striving for[21]; 
    

2. Arrangements are implicit, tenacious, ingrained into the physical body, and experience-near (i.e., high involvement, low articulation), attuned by environment.[22] General examples can be: partners’ or senior lawyers’ habits, proclivities or idiosyncrasies, the extent of tolerance and avoidance by others of them. More specific examples can be: the implicit acceptance of harsh negative language by seniors whilst dressing down juniors: ‘you must’, ‘you must not’,  a weak understanding of utilization[23] and realization[24] of billable hours (in particular a lack of thorough analysis and enforcement as to why the rates are low or high), expectation of around-the-clock availability, stigma around reporting mental health issues, speaking up about emotions, hyper-competitive billing culture, regular ‘war stories’ enthusiastically recounted by senior lawyers etc. The (commercial and social) opportunity cost of such behaviors on both senior and junior lawyers’ parts should be the focus here;  
    

3. Conventions take up a theoretical middle position and are therefore plotted in between. They are the implicit conduct employees derive after spending enough time together (but remain careful to express candidly). Examples: the unwritten power structure within an organization[25] (and presumptively how to navigate it) or ‘taboo / imponderable’ subject matters such as prospective financial remuneration, bonuses, partnership prospects or the basis of promotion or the possibility of working for such and such partners;

 

How are these concepts in organizational theory relevant to you? Such Agreements, Conventions and Arrangements ultimately encapsulate the social behavior in and around you and the other inhabitants of your firm. A conceptual understanding of them will allow you to detect what and where ‘unhealthy’ or ‘bad’ behavior ranging from the abhorrent to the highly inappropriate to the mildly discomforting are. The extent of such behaviors determine a law firm’s market appeal, hiring and retention rates, time and energy wastage in a tight dateline high pressure environment, and most crucially impacts the firm’s malleability to adapt to negative internal and external incidents and forces.

 

I submit to the legal practice community that understanding these concepts and applying them to enact needed, practical change in your organization is absolutely crucial, critical and most likely overdue. Lest there be any doubt: I do not suggest such detection easy (in the absence of complete candor and objectivity by most employees). As mentioned earlier, a well-practiced (and objective) individual or a professionally trained eye will most likely be required in order to make a proper evaluation of behavior within a firm after weeks or months of observance and research: to ferret out what are most likely instinctive and impulsive behavior, which are in turn tacitly accepted by the silent junior ranks, and vice-versa.

 

 

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Part One concludes here with these two principles.  Part Two in an upcoming edition of this publication which covers the Third Principle, entitled “The Organizational Tuning of Behavior – A New Training and Thought Regime” and deals with the ‘great challenge’ – the apparent inevitability of ‘throwing inexperienced young lawyers into the deep end of the learning pool’.

It begins with a borrowed quotation from the then Dean and Professor of Law at Pace University of Law, Stephen J. Friedman, who began his article The Struggle Between Legal Theory and Practice: One Law Student's Effort to Maintain the "Proper" Balance [2005] with this sentence:

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“No one expects a doctor to ‘think’ like a doctor when she leaves medical school. We expect her to be a doctor.” [26]


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Go To Part 2: https://www.firstcapital.asia/managingprimalinstinctspart2

 

End Notes
 

[1] Retention of Young Lawyers, https://v1.lawgazette.com.sg/2006-9/Sep06-feature2.htm (September 2006).

[2] Revisiting the Attrition of Young Lawyers in Singapore, https://lawgazette.com.sg/practice/practice-support/revisiting-the-attrition-of-young-lawyers-in-singapore/ (March 2022).

[3] Report of the Committee to Develop the Singapore Legal Sector, https://www.mlaw.gov.sg/files/news/press-releases/2007/12/linkclicke1d7.pdf (September 2007).  

[4] The Big Read in short: Why young lawyers are leaving practice, https://www.todayonline.com/big-read/big-read-short-why-young-lawyers-are-leaving-practice-1796611 (22 January 2022).

[5] Revisiting the Attrition of Young Lawyers in Singapore, supra n 2: “By comparison, USA at 18 per cent associate attrition rate 2012-2018. UK at 14 per cent and US at 16 per cent associate attrition rate during the pandemic”.

[6] The term ‘personnel leader’ is hardly ever used in legal industry parlance. In the context of managerial behaviour, it is a far more appropriate and contextually relevant word compared to the conventional ‘business leader’ which belies the emotive human factor profoundly inherent in the present subject matter.

[7] Against the current: Cultural psychology and culture change management, https://journals.sagepub.com/doi/full/10.1177/1354067X21993789   (16 March 2021).

[8] A “Conscientious Bar” Organization, learning and public service,  https://www.lsc.gov.sg/docs/default-source/oly-speeches/mass-call-2017-speech.pdf  (28 August 2017).

[9] Why are lawyers such terrible managers?  https://fortune.com/2013/01/11/why-are-lawyers-such-terrible-managers/ (11 January 2013).

[10] Revisiting the Attrition of Young Lawyers in Singapore, supra n 2.

[11] Why Perfection Stops Entrepreneurial Lawyers Succeeding, https://firmsy.com/blog/why-perfection-stops-entrepreneurial-lawyers-succeeding (22 Aug, 2019).

[12] What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2398989 , (13 May 2015) at pg. 585.

[13] What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, supra  n 12 at pg. 582: “Autonomy support is an important construct in any relationship in which one person has less authority or power than the other (teacher-student, employer-employee, parent-child, mentor-mentee). The components of perceived autonomy support include the extent to which the person in authority (1) acknowledges the perspectives or preferences of the other; (2) provides meaningful choices to the other; and (3) when asserting control rather than providing choices, explains to the other the reasons why that is necessary.”

[14] What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, supra n 12 at pg. 624 referencing Elizabeth Mertz ‘The Language of Law School: Learning to "Think Like a Lawyer"’ (2007).     

[15] What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, supra  n 12 at pg. 626-7.

[16]Against the current: Cultural psychology and culture change management, supra n 7.

[17] Voestermans P., Verheggen T. Culture as embodiment: The social tuning of behavior. (2013) as quoted in Against the current: Cultural psychology and culture change management, supra n 7 at “Study of people versus the hypostatization of culture”.

[18] Greenwood J. D. Realism, identity and emotion: Reclaiming social psychology (1994)  as quoted in Against the current: Cultural psychology and culture change management, supra n 7 at “Agreements, conventions, and arrangements”.

[19] Ibid.

[20] Against the current: Cultural psychology and culture change management, supra n 7 at “Agreements, conventions, and arrangements”.

[21] Ibid.

[22] Ibid.

[23] Number of billable hours worked divided by the number of hours in a 8-hour workday.

[24] Number of billable hours invoiced divided by the number of hours worked.

[25] Against the current: Cultural psychology and culture change management, supra n 20.

[26] The Struggle Between Legal Theory and Practice: One Law Student's Effort to Maintain the "Proper" Balance, https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1112&context=lawfaculty (2005)