Under Contract (Quoted)

By Anna Stolley Persky, Washington Lawyer (January 2014)

Under Contract: Temporary Attorneys Encounter No-Frills Assignments, Workspaces

Illustration by Dan

Temporary contract attorneys are, by most accounts, crucial to the legal workforce in Washington, D.C. But some contract lawyers are not, to put it bluntly, happy about their fate. They bemoan what they describe as poor working conditions.

Sometimes there’s no toilet paper in the bathroom. Sometimes they are not allowed access to their cell phones or the Internet. The work, they say, is tedious. The hours can be long, and the rooms can be windowless.

When they talk among each other, they share their stories of mounting debt, low wages, and what they see as humiliating treatment by law firms they had once dreamed of joining. They describe themselves as disillusioned and, most of all, trapped by their inability to find other more permanent employment. “We are treated like day laborers. We are the [migrant farm workers] of the industry,” says Fiona Edwards, a Washington, D.C., lawyer who “stumbled into the contract market” and has never gotten out of it. “We are treated like an inconvenience when, in reality, law firms are making lots of money off of us. The morale among contract lawyers? Disenchanted.”

The Posse List, an online clearinghouse for contract attorney employment opportunities, says it has more than 14,000 U.S. lawyers registered nationwide as actively seeking temporary employment. But there is no official method for determining the total number of lawyers in the Washington metropolitan area working on a temporary contract basis.

There are many different ways to view the plight of the temporary contract lawyer. Certainly, for some of them the reality of their day-to-day employment is far different than their expectations upon law school graduation. On the other hand, the legal economy is in a rut, with some major law firms either collapsing or shrinking. And so, from another perspective, perhaps temporary workers should count themselves lucky to have employment at all.

“Many lawyers have had huge expectations, and now are so full of bitterness,” says Daniel M. Mills, assistant director of the D.C. Bar Practice Management Advisory Service. “They blame law schools for graduating too many lawyers. But the blame thing, who cares? It’s happened.”

These days, temporary contract lawyers represent a surprisingly diverse group of attorneys. According to temporary workers and employment agency representatives, the pool of workers ranges in experience from recent law school graduates to older lawyers with decades of work experience. While some temporary contract lawyers have made lifestyle choices, many more attorneys say they have been forced by the lackluster economy to find work when and where they can.

“When you are on a project, and people open up about the careers they once had or the careers they thought they would have, you feel a profound sadness for them,” says a Washington, D.C., temporary contract attorney who asked not to be identified over concerns her comments would affect her employment opportunities. “Basically, there is this entire sector of highly educated workers who are doing this very mundane, tedious and sometimes mindless work, and who aren’t able to get out of it.”

‘That’s Just Reality’
The National Association for Law Placement (NALP) reported that the overall employment rate for 2012 law school graduates continued to drop from prior years. That being said, the NALP noted some positive signs, in that graduates were finding more jobs in large law firms and median earnings rose for the first time in five years.

According to market observers, there is an overabundance of lawyers for a shrinking number of jobs due to an overall weak economy.

“When law firms bring in staffs of contract lawyers instead of bringing in permanent attorneys, they are choosing a lower cost alternative and will continue to make every effort to keep costs low,” says James W. Jones, a senior fellow at the Center for the Study of the Legal Profession at Georgetown University Law Center. “That’s just reality, I’m afraid. There are eight million stories in the The Naked City.”

But, as with any unemployment or underemployment trend, there are larger questions. Is the trend toward hiring temporary contract attorneys a short-term development out of economic necessity? Or is the legal economy shifting toward a business model increasingly reliant upon temporary workers?

Mills believes that the “old model of doing business” will become obsolete. The days of law firms doling out cushy associate positions with outlandish salaries are gone for good, he says.

“There’s this big self-correction going on in the profession. Clients don’t want to pay as much for services, and so the power balance has shifted, and firms are adjusting to that,” Mills says.

Mills is not alone in predicting that cost-conscious law firms will continue to trim their partner and associate positions instead utilizing temporary attorneys as needed.

The recent law school graduate and the experienced, but now unemployed, attorney now both face a different kind of market than 20 years ago, Mills says. And, indeed, law firms are increasingly exploring other lower-cost options, including outsourcing services abroad and utilizing technological advances such as sophisticated software programs.
The time has come for attorneys, Mills says, to think creatively about how to become integral to the new legal market.

“The fact is that firms just aren’t going to be hiring a whole bunch of associates anymore, so lawyers are going to have to get out of this mentality of ‘I’ve been trained. I’m brilliant. So I should be hired,’” Mills says. “While the economy is coming back, the legal market is going to look very different. The situation may be ripe for opportunities, but we don’t yet know what those will be.”

‘Ridiculously Low’ Wages
Certainly, dozens of large and mid-size law firms, either locally based or with local offices, hire contract lawyers. Temporary attorneys often are hired through placement agencies.

“To properly serve a client who comes in with an immediate need in a large matter that will necessitate additional bodies for a fixed period of time, that’s when you hire the contract lawyers,” says Diane P. Kilcoyne, director of litigation support at Lerch, Early & Brewer, Chartered, in Bethesda, Maryland.

In addition, many corporations and local firms, including some smaller firms, hire contract lawyers for more specialized assistance such as reviewing telecommunications contracts.

Temporary contract lawyers with specific skills such as technological expertise tend to get higher wages. The mass of lawyers engaged in large-scale document review, usually as part of discovery, are more likely to be paid much less.

Contract attorneys in the Washington metropolitan area and beyond are specifically outraged by their pay, which often ranges from $25 to $40 per hour. By contrast, law firms can bill their hours to clients for much more, perhaps for hundreds of dollars per hour.

Meanwhile, the median salary for 2012 law school graduates with full-time jobs lasting at least a year was $61,245, according to the NALP. Salaries of more than $75,000 accounted for almost 36 percent of salaries reported. And, in the top 100 grossing law firms in the country, the average partner earned $1.47 million in 2012.

For some temporary contract attorneys, the disparity between their lives and those of their counterparts in the more prestigious, larger law firms is a source of anger and frustration. There has been some discussion among contract lawyers of unionizing to negotiate higher wages and better treatment.

Even some staff attorneys and administrators at large and mid-size firms in charge of hiring or supervising temporary lawyers agree that contract attorneys are poorly compensated.

“The amount that contract lawyers make is ridiculously low,” says one law firm administrator who asked not to be identified. “You can make more waiting tables.”

Not Always Path to Richness
Looking at the history of the legal industry provides some interesting insight. Attorneys in the United States haven’t always assumed they would get rich practicing law. In fact, in colonial times, lawyers were considered part of the professional class, but not, generally, the upper class.

Of course, there’s no question that certain standout lawyers had been at the center of American historical developments, such as certain drafters of the Declaration of Independence, the U.S. Constitution, and state constitutions. Notable advocates argued key cases in state and federal courts, entered politics, or used their legal knowledge in the business world.

But their importance didn’t necessarily translate into high wages. As the country grew, attorneys such as President Abraham Lincoln practiced law without the benefit of a formal legal education. Lawyers of the time faced the prospect of barely making enough to support their families. Alternatively, they could make a relatively high salary, especially if they came from upper-class backgrounds or had luck and the ability to market their skills.

In addition, lawyers then were less likely to have specializations and more likely to be general practitioners working alone or in what we would now describe as small firms.
As the United States industrialized, the role of lawyers changed. Eventually, some law firms began to consolidate and grow. With increased regulation and a changing society, lawyers also began to seek out areas of specialization.

State laws once limited legal fees. But as the maximum-fee laws were repealed, the concept of billable hours emerged as a way to ensure higher pay for services rendered. By the 1970s, billable hours became the standard charging procedure for most services.

“There was a time when lawyers made less money than other professionals,” Mills says. “Then [lawyers, and therefore firms,] decided they should be charging by the hour rather than charging by the value generated. That changed everything.”

Clients Push Back
By the 1990s, law firms with hundreds of attorneys—dubbed BigLaw—pushed their associates to bill as many hours as possible to their paying clients. At the same time, attorney salaries skyrocketed.

Since 1994, which saw a dip in law firm employment, the job scene grew brighter and better than ever before. But, as proven many times, when things go up, they can come crashing down.

The recession that began in 2007 led companies to cut expenses, including lawyer fees. In the years that followed, large and seemingly unshakable law firms have collapsed; others, such as Patton Boggs LLP, have laid off associates. And numerous law firms cut perks and forced salary cuts.

The country’s slow wriggle out of the recession hasn’t translated into more and better jobs for lawyers. Companies, still reeling from the crisis, are fighting back against hefty legal fees.

“Demand for legal services has been pretty flat for the past couple of years,” says Georgetown’s Jones. “Law firms are trying to raise their rates, but client pushback is pretty vigorous. Growth is sluggish, and firms continue to struggle. It’s a delicate balance for law firms.”

In the first half of 2013, Washington law firms struggled more than their counterparts in other states to grow their businesses, according to data compiled by Citi Private Bank Law Firm Group. The findings counter conventional wisdom that Washington firms have been insulated from the recession because of their close proximity to the government. The data also supports the conclusion that the Washington metropolitan area is no better, and arguably worse, than any other area for lawyers to find permanent work.

“It remains a competitive market, to say the least,” says Matthew Pascocello, director of career development and alumni counseling at American University Washington College of Law. “In the Washington area, there is a strong labor pool of smart, well-credentialed attorneys.”

Perks Were Nice
The concept of a contract worker is certainly nothing new in the legal industry. In the Washington metropolitan area, temporary contract workers have long been a staple for an economy already reliant on a transient population.

“For a number of years, contract lawyers were the best-kept secret in the legal profession,” Jones says.

For several decades, Washington law firms have relied on a steady stream of temporary attorneys to help with regulatory work, mergers and acquisitions, and document review and processing in preparation for litigation.

Lawyers who chose contract work found that there were some perks to temporary employment, especially in the tonier firms. Some firms had a reputation for feeding their contract workers gourmet meals and housing them in glamorous accommodations, sometimes in the trendiest parts of town.

Contract lawyers describe meals and snacks delivered to their desks, decent wages, and clean, spacious work stations. They also recall a seeming abundance of work, allowing them to pick among a number of potential projects.

“In the beginning, the contract market was great,” says Edwards, the Washington, D.C.-based contract lawyer. “The money was good. A lot of times they treated you well. You could get rides home and meal vouchers or they fed you right there. It was gainful employment. I was rolling.”

But then, as Edwards describes it, “that whole recession thing came along.”

According to contract lawyers, the environment changed as the economy spiraled down. Contract pay dropped and the accommodations worsened. For several years it became difficult to snag even a temporary position in the most basic of document reviews.

When the money dried up, “projects were scarce,” Edwards says. “You had to hustle to get work.”

While the market has picked up slightly for contract attorneys, it’s still not where it used to be, Edwards says. The median salary, which dropped during the recession, has failed to rise back up to its pre-recession rates, she says.

Mary Legg Winter, president and general counsel of Firm Advice, Inc. in Washington, D.C., has been placing attorneys for temporary and permanent positions since 1996. Winter says that as the permanent jobs have become scarce and the number of temporary placement agencies has increased, the collegiality among placement agencies has declined.

“As law firms have tightened their admissions to partnership, there are a lot of high-level lawyers willing to work on a contract basis,” Winter says. “It’s much more competitive between the agencies. It used to be a very nice civil environment.”

Cost Trumps Pedigree
In the past, law firms marketed their reputations and, in many cases, accepted clients with an explicit or perhaps implicit promise that the work would be done by their own lawyers.

Jill Foer Hirsch, a former legal administrator at several large firms in the Washington metropolitan area, says there was, at one time, a stigma to admitting that your firm staffed projects with temporary contract attorneys.

“Presumably, clients were coming to you because you said you trained your attorneys. That’s what you were selling them,” Hirsch says.

But as observers of the legal profession have espoused, the legal industry is likely on the verge of a paradigm shift. Some academics describe the change as redefining the types of services lawyers provide and the value attached to those services.

“In the ‘buyer’s market for legal services’ that has prevailed since 2008, clients are much more discriminating about the services they want, the sophistication or uniqueness of those services, and the prices they are prepared to pay for them,” Georgetown’s Jones says.

Many clients, it appears, are focusing less on the pedigree of the people who conduct research and reviews, for example, and more on whether costs are kept down.

Jones, Mills, and other legal market observers predict that law firms likely will increase their reliance on temporary contract workers.

“The use of contract attorneys is an incredibly important part of the overall legal process,” says Marc Zamsky, chief operating officer of Compliance Discovery Solutions, an e-discovery legal staffing company. “Most corporations and law firms have fully embraced the use of contract attorneys through third-party vendors because it is efficient and cost effective.”

But pressure from clients to minimize costs also appears to lend itself to other solutions, such as law firms increasingly outsourcing services to countries like India, or relying more heavily on technological advances that, in some cases, can replace lawyers, paralegals, and other office workers.

For example, many larger law firms are using predictive coding for large document review. Predictive coding uses algorithms to determine whether documents are relevant for a review.

“There is no doubt that technology is revolutionizing the work in large document reviews,” Jones says. “And there is no question computer search algorithms will continue to improve and reduce the amount of human time required to complete initial sortings. Indeed, this is one factor in the meteoric rise of the legal process outsourcing industry, an industry that will probably command over $1 billion in total annual revenues in the next two or three years.”

Too Many Lawyers
Despite the faltering legal market and rapidly changing industry, law schools continue to send new graduates out into the working world.

The class entering law school in 2010 was the largest on record. Since then, there has been a sharp decrease in the number of law school applicants, perhaps as potential students learned of the difficulties facing new law school graduates.

“The law firms aren’t hiring anywhere near the way they used to hire, and yet law schools are continuing to churn out graduates. That’s a big reason why there is a huge glut of lawyers,” Winter says.

To make matters worse, law school graduates are saddled with unprecedented debt. In 2012 the average debt load for law school graduates was $108,293, according to the U.S. News & World Report. At some schools the average debt load was even higher.

The average debt load for a graduate of American University Washington College of Law, for example, was listed at $151,318 for 2011. The school, meanwhile, provides counseling on student loan management and repayment options.

According to data from Law School Transparency, a nonprofit legal education policy organization, 27.7 percent of 2012 law school graduates were either in short-term, part-time, or nonprofessional jobs, or were unemployed.

“We are graduating people who are already behind the eight ball because of the debt they have,” says Kyle McEntee, cofounder of Law School Transparency. “The situation is dire for new lawyers. Every year that law schools graduate more people than get jobs, the problem is compounded.”

For McEntee, the plight of the legal industry isn’t just measured in statistics. McEntee says he “can’t help but think about the individuals and how much debt they have and how that affects the decisions they have to make in the near and long term. There is a psychological and emotional cost to carrying that debt.”

“This is an important segment of our population. Lawyers matter,” McEntee says.

‘Zombie Land’
Some lawyers having difficulty finding permanent employment, and yet trying to make a living from their trade, express bitterness that law schools continue to churn out more graduates. More lawyers, they say, quite simply means more competition over both the coveted permanent jobs and even the much maligned temporary positions.

Some temporary contract attorneys also describe lives filled with drudgery. They have lists of gripes, especially when it comes to the dreary task of document review.

Temporary contract lawyers in 2013 have a medium—the Internet—for voicing their complaints, and they do so, occasionally using provocative language on blogs, in chat rooms and, through e-mails that eventually land on Web sites devoted to the legal scene. On one Web site, an apparently unhappy temporary contract worker described in an e-mail “extremely crowded working conditions.”

Temporary contract workers are quick to point out that even if they have employment every day for months, the jobs are not the type that look impressive on a résumé. Further, they say that for the most part their work does not help them gain references or allow them to network.

“You don’t have stable coworkers or an office or a stable boss,” says the Washington, D.C., temporary contract attorney who asked not to be identified. “You are basically an anonymous worker for a brief period of time, so you are not building up a résumé.”

“Conditions go from OK to horrific. Sometimes you can be in an environment where you can chat a bit with coworkers and build friendships. But often it’s more like zombie land. You’re in a windowless room with cheap tables crowded together. Sometimes they put pressure on you not to talk and to review documents quickly. It’s unbelievably dehumanizing,” the attorney adds.

Further, temporary contract workers complain that the lifestyle is uncertain and stressful. In addition to low pay, temporary contract attorneys point out that they don’t get health care benefits.

“You literally have no idea whether you will have three months of unemployment or two weeks of unemployment between projects,” says the anonymous attorney. “You have zero control, and it makes it hard to budget. And doing mindless reviews for 60 hours a week, it’s exhausting and taxing on your body.”

Suitable Suites
Edwards also says she has experienced less-than-satisfactory working conditions on occasion.

“With one agency, lawyers are not allowed to have their phones with them on-site. They go into phone lockers,” Edwards says. “I don’t want to sound like a spoiled, entitled brat, but that’s not professional treatment.”

Law firms and legal staffing agencies counter that the complaints they have heard and seen on blogs are often embellished and not connected to the reality of what they have seen on a daily basis.

“Of the recent complaints that have made their way onto the blogosphere, many, if not all the things cited, were either out of context or patently wrong,” says Zamsky of Compliance Discovery Solutions.

Compliance has its own centers to house contract lawyers while they are conducting document reviews. Zamsky says Compliance makes a point of ensuring that the facilities have comfortable work stations, fully stocked kitchens, and properly working air conditioning or heat, as needed. He says the contractors get a “fair market wage.”
In addition, Zamsky says, law firm clients often work at the facilities alongside the contract staff.

“Our facilities are all in Class A buildings and provide the highest grade amenities. The facilities are kept clean and the bathrooms are maintained,” he says. “We have the understanding that all our attorneys want to work in a nice environment with windowed facilities. In my experience, complaints can often be exaggerated and unsubstantiated.”

Zamsky says there are certain restrictions on Internet access and rampant phone use as a “security protocol” that law firms and their corporate clients demand.

Georgetown’s Jones points out that putting contract workers in “fancy, wood-paneled offices downtown” wouldn’t make sense, because doing so wouldn’t be “cost effective.”

Says Jones: “Think about it—how do we hold down costs for attorneys who don’t need to be in fancy offices that corporate clients are going to be visiting? Rent space in a less high-priced part of town. This is all part of the effort to hold down costs”.

Making It Work
Certainly, there are benefits to working on a contract basis. While Winter’s staffing agency doesn’t handle document review positions, it does focus on placing what she describes as “substantive attorneys” in corporations and law firms. For example, the attorneys she places are experienced with negotiating commercial contracts, assisting with financial transactions, or writing legal briefs.

Winter says some of her attorneys are attempting to start their own firms. “I’ve had some people who’ve used contract work from my clients to keep them afloat while they set up their own private practice,” Winter says. “Eventually some of them get to the point where they don’t need the work from my clients because they’ve developed their own. So it helped them get started, and that is fine for all involved.”

Cindy Tewksbury, an attorney who is licensed to practice in New York and Washington, D.C., works part-time from her home in Chevy Chase. Tewksbury has a background in communication networks, software licensing, and technology contracts. And she also has a young child with whom she wants to spend time.

“Working on a contract basis allows me to continue to work, but also manage my other commitments and be with my child,” Tewksbury says. “It works for me. Before I started contract work, I had significant legal experience. My training and experience allow me to hit the ground running for the contract work I get.”

Ilana Mark, licensed to practice in Maryland and Washington, D.C., has been doing contract work since 2006.

“It started as something for me to do while I was looking for a ‘real job,’” says Mark, who contracts out mostly for document review positions. “Then it turned out that the money was good and the work was flexible. You meet a lot of people and learn about different areas of the law.”

However, the drawback, Mark says, is she never knows when there will be a project and she has no “reliable paycheck.” Sometimes she gets to a project, the case settles, and she gets sent home.

But, Mark adds, she also doesn’t have to take work home with her.

“I don’t have to have crazy hours and be a slave to a law firm,” Mark says.

Less Chat, More Act
For now, legal industry observers say, the profession is in limbo, as are the careers of unemployed or underemployed lawyers. There are, however, steps lawyers can take to try to maximize opportunities, Mills says.

For example, the D.C. Bar offers training and pro bono work to help lawyers “gain a level of expertise and experience,” Mills says. Law schools such as American University Washington College of Law have educational programs and other alumni resources to help lawyers with networking and expanding their skill set.

Mills has some practical advice for frustrated temporary contract attorneys and especially for the younger generation: “Get off social media and stop complaining about it. Stop ranting and come down here to do training and learn practice areas. Start taking cases under our supervision. Stop the moaning and groaning and interject yourself. Make yourself marketable.”

In his recent book Tomorrow’s Lawyers: An Introduction to Your Future, Richard Susskind discusses the future of the legal industry and suggests that lawyers need to master the changing technology and the emphasis on cost-effectiveness.

Observers such as Susskind and Jones suggest there will be a growing need for certain legal-related positions such as online dispute practitioner and legal management consultant.

But some attorneys, like Edwards, say they struggle with garnering the energy required for enthusiasm and initiative.

Edwards moved in 2006 to Washington, D.C., with dreams of a thriving legal career. She says she thought, initially, that when she started contract work, she would get “noticed” by a law firm for her skill and initiative and eventually be offered a full-time job.

“When you pack up your truck and your law degree and you dream of a career where all your investment and time will come to fruition, and then you get stuck in the contract mode, it’s depressing,” Edwards says. “When you show up to work with a room filled with attorneys working for $30 an hour, just like you, it’s depressing.”

Freelancer writer Anna Stolley Persky wrote about the state of same-sex marriage in the November 2013 magazine.

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