The Author is a corporate lawyer engaged with a Tier 1 law firm for over five years now. While work keeps him busy (he is turning around SPAs at 6pm), he often contemplates what drives his colleagues and friends in the profession. The recent attrition rate in his firm (more so from the younger generations on account of work-life balance and the older ones transitioning in-house to have ‘good hours’), drove him to write this article.
Consultancy v. Employment
Lawyers in India practice as consultants. They are restricted from practicing as employees for reasons that law is a noble profession which requires full time dedication. These restrictions are spelled out at length under Section VII of the Bar Counsel India Rules which further provide that:
“Bar Council of India is of the view that if the said officer is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate. If the terms of employment show that he is not in full time employment he can be enrolled.”
The fundamental difference between an employee and a consultant is that employees are hired under certain laws and are entitled to benefits such as gratuity, provident fund etc. whereas consultants are hired for their unique skill set and are paid lump-sum amounts for their work. This also implies that there are no laws governing the number of leaves, the work hours or any other benefits to a consultant. A basic case law research confirms that there has been no interpretation of what is the role of a consultant in India.
The Lawyer Life: Consultants and Free Will
Lawyers being lawyers, have managed to read well into these loop-holes and accordingly when a firm hires a lawyer, the lawyer is generally party to (if there is any paperwork at all) a document indicating his retainer and standard termination provisions (often without any provision on notice period etc.). When hired by a counsel, usually there are no documents since the practising advocates do not require huge manpower and a confirmation is verbal. Thus, most firms/counsels do not have a policy in place and things like leaves, work hours are left to one’s imagination.
Other common issues that are visible in the system are erratic work hours – with urgent work popping up at odd hours of the night. The same goes for the leave policy and leave system that is barely followed. While employees are entitled to fixed leaves (in the nature of sick, annual and casual leaves), consultants are expected to work from home even on their off-days. The reason ranges from – this will barely take time to if you are home, we are sure you can take a few moments out for a quick review.
Let us be honest for a second, there is barely any lawyer who has not had the thought of quitting over the crazy (and mostly unnecessary) hours. Yet other than the occasional cribbing, there is no action that has been taken so far. When asked this question, most lawyers come back with – “I am used to it by now, I did so the junior should too, Try explaining this to the client.” Has anyone actually tried? This brings us to the important question a – what are the rights of the lawyers or the so called ‘free to work as they please consultants’?
It is but obvious that beyond the standard 8-10 hours, the mind is not productive. Despite this, lawyers are expected to work/ do work through nights chasing unrealistic targets. As opposed to many other organisations which maintain that they will remain unavailable after work hours or do not work weekends. Moving into the work-life phase seems a far point, but lawyers who tend to take a stand on everything, have surprisingly failed to take a standard on these absurd (unwritten) policies – of being available through the week, including the weekends where work may suddenly come. Unlike organisations which work in shifts, at any given time, lawyers choose to handle clients in different jurisdictions complicating their own work hours or not negotiating to place their meetings more suitably. More often than not the late hours trickle into cancellation of early morning meetings (if there are ever any).
Rights – Do consultants really have any?
Like all people, consultants are also entitled to basic rights like standard working hours, leaves etc. By implementing these over exploiting those who choose to be a part of the system, the growing attrition rate in the profession may be curtailed. While ‘dedication to any profession’ is a must (quoting the bar rules), the question is can dedication be equated to over-work? Basic rights should include right to enjoy one’s life (regardless of how that may be).
In the last few years, the clients have become more and more demanding with requests like – Can this SPA be turned around by tomorrow or Can we have memorandum by EOD (on a 6pm call, of course)? With the seniors at law firms giving in to these requests and over-committing, they have only one justification if we do not do it, some other firm will and there are only limited big ticket companies who meet the hourly rates. The recent attitude suggests that the money spent is equivalent to the hours devoted in the work place as opposed to the quality of work churned out by the lawyers. The funny thing is, client wants what he wants – it is always driven by vision of the business. So the question is the long hours, the fight over that one clause, is the client listening to the lawyer or is the lawyer giving in to the client?
It is also true that the list of fortune 500 is restricted to 500 companies willing to pay by the hour. This makes the competition amongst the law firms intense and eventually trickles from the partner to the associate fresh from law school. Except this fresher from law school is often left bewildered – is he sitting with the same ‘cool’ associates who resembled Harvey Spector? There is a lot more that goes in then just the screaming and shouting (still portrayed as what lawyers do – thank you Bollywood).
How much control do consultants really exercise over their life? It is true that if you end up in a good team, you may be slightly more privileged than others but the truth is that there is only so much that can be accommodated. Every-one loves a readily available worker or someone with so many EMIs that leaving is not an option. One may say the senior level management is having a better time. But is this really true? The pressure of getting a client or managing a team which is constantly snappy – any entrepreneur will agree – being a rainmaker is not easy. Getting a client is one thing but keeping one is a whole other story. Thanks to the power of google, it is now easy to connect with any one. So when you snooze, you lose. When the comments from the rival firm come at 3 am, you have to respond by 6 am. This keeps the management on its toes. The way on top does not look any better, does it?
The way forward: Making peace or moving on?
Many lawyers choose to firm hop in the hope of ‘better team’ or ‘understanding bosses’. Some choose to transition to other roles including in-house, policy, academics. Not much information is made available about the alternate options, which still remain unexplored. However, would it not be more realistic to improve the existing environment and allow a lifestyle which is more conducive? The journals or the web chooses to cover the ever increasing packages of lawyers but there is a lot of harsh reality attached to the pay slip which is ignored. Media tends to skip that it entails work over 15 hours or that most leaves are cancelled when transactions kick in, there are days where people do not or barely go home and a lot of the projected big numbers include variables which is a way to make the best of the situation and without the assurance of getting the desired amount (everyone works towards the variable – if you are suffering, might as well make money out of it?). Variables or bonus, as it is called, is very discretionary – a lesser known fact – it is the best described as a hamster wheel. Posts, positions, incentives – a cubical, a shared room, your own cabin, a plant crushed under a pile of books – it all looks glamourous – till the time you sit there for 15 hours, then its over-bearing. But do they not after a point, work robotically? Like a drill – one would say they live for the weekends – if only they had any.
It is not to say that being a lawyer is bad, it has its moments, like any other profession, but it is to contemplate on why those who stand up for rights of millions have failed to stand up for their own rights. Yes, a lot of lawyers get a kick out of negotiations (that one indemnity provision which makes them go crazy or that one minute in the court when the order is in their favour) or deal publications after months of due diligence and thousand page turns to the document. But what cost does it come at? No vacations, a big house because of big pay cheques, EMIs and of course, lots of saving ‘for retirement’.