Options for the Opt-Out Revolution:
Strategies for Lawyers and Employers to Address Leave-Taking and Re-Entry in the Legal Workforce

Betty L. Dunkum, Esq., Senior Trial Consultant
Trial Practices, Inc.
West Palm Beach, Florida

“My son was very clingy for the first year of his life. He would not let me put him down. There was no way I could work.”

A Harvard Law School graduate who has been out of the workforce for several years to raise her young children shared this sentiment. She is now at the point where she could do some part-time work, but she is having difficulty finding an opportunity that would still allow her to “be there” for her children.

A study by the Center for Work-Life Policy showed that approximately 40 percent of women take time away from their careers at some point in their lives, usually to raise children. Both genders may be faced with a decision to opt out temporarily to care for an aging parent or an ailing partner. The New York Times has called this trend the “opt-out revolution.” Many who “opt-out” are highly educated and successful. For example, a study showed that 57 percent of female students in Stanford's 1981 graduating class had left the workforce and only 38 percent of female Harvard Business School graduates from the 1980s are still in fulltime careers. See Sylvia Ann Hewlett and Carolyn Buck Luce, Off-Ramps and On-Ramps: Keeping Talented Women on the Road to Success, Harvard Business Review 1 (March 2005 Online Version) (available at http://harvardbusinessonline.hbsp.harvard.edu/relay.jhtml?name=itemdetail&id=R0503B).

Seeking a Short Pause in a Thirty-Year Career

The response to this phenomenon has been varied. Some, such as Dean Elena Kagan of Harvard Law School, disagree that a “revolution” is taking place; rather, many women are—as they have tried to do for years—seeking a “short pause” from a thirty-year career to raise children. See Interview with Dean Kagan (Feb. 13, 2006) (available at http://www.trialpractice.com/online.htm). Indeed, research supports that most women only pursue a “short pause” in their career: 1.2 years for women in the business sector and 2.2 years on average. Hewlett and Luce, supra, at 4-5. Other researchers believe that interest in balancing work and family life increased after the terrorist attacks on September 11, 2001. See Monica McGrath et al., Back in the Game: Returning to Business after a Hiatus, Wharton Center for Leadership and Change 2 (2005) (“McGrath”).

Punished for a Lifetime

Attorneys who leave the workforce and seek to later return are often punished for a lifetime. Women frequently leave work to have children at the time in their career when “promotions are most likely.” Id. at 3. When they return, many have difficulty finding jobs. McGrath believes an “outdated firewall of organizational recruiting and retention practices” exists which keeps returners from even being considered for key positions. Id. at 3-4. In many instances, returners are told they are under-qualified for the positions they formerly held due to their time away from work and over-qualified for lesser positions; one woman was seriously considering omitting her graduate degree from her résumé, so that employers would give her a chance to prove herself in a lesser position. See id. at 10. Those who do find jobs will find their wages lag behind their peers for the rest of their careers.

“Women lose a staggering 37% of their earning power when they spend three or more years out of the workforce.”

Hewlett and Luce, supra at 5.

The Information Gap

Despite these startling statistics, there is very little research on the opt-out issue, particularly in the context of the legal profession. Our colleagues in other professions are beginning to address this issue by developing programs designed to allow for a flexible career path. However, in preparing for this program, we had difficulty finding examples of women attorneys who had successfully re-entered law practice after a period of time off to raise children and we could not find a law firm that had a methodology in place to address opt-out issues. This issue is only now beginning to appear on the radar screen of the most progressive law firms to address women’s issues; the key staff contact for one such firm told us, “I wish you were calling me a year from now.”

Reversing the Brain Drain

Given the difficulties in returning to the workforce after time away, many women get discouraged and start downsizing their ambitions for a career. In a recent speech, Dean Kagan shared her concerns about the “brain drain” that occurs when women’s aspirations are frustrated and society loses their talents. Elena Kagan, Leslie H. Arps Memorial Lecture (Nov. 7, 2005) (available at http://www.law.harvard.edu/news/abnyspeech/). In “a profession dedicated to the pursuit of justice, . . the concern for equal opportunity should be at its very highest.” Id. Thus, responding to the opt-out issue requires a commitment to give men and women equal opportunities to have a fulfilling, full 30-year arc to their careers.

In addition to the social benefits of reversing the “brain drain” by addressing opt-out issues, employers may soon have a more personal motivation to retain bright women through policies that accommodate a period of opting out: quality lawyers may soon become scarce. Hewlett and Luce share their concern that “market and economic factors . . . are aligned in ways guaranteed to make talent constraints and skill shortages huge issues again.” Hewlett and Luce, supra, at 10.

Educating Attorneys and Their Employers

Addressing the opt-out issue first requires education. Attorneys who desire to opt out and their employers need to develop successful strategies to ensure the process is as smooth as possible.

Kristen Powers offers advice for women who want to successfully opt out and return. See Kristen McManus Powers, Back to the Salt Mines: Rejoining the Workforce After a Time Out, NALP Bulletin (July 2005) (available at http://www.nalp.org/assets/library/263_0705rejoin.pdf). McGrath also offers a number of proactive solutions for attorneys and employers. McGrath, supra, at 13-16. For example, McGrath cautions women not to be “naïve” in thinking a prestigious degree will enable smooth transitions out of and back into the workforce, id. at 4; she urges women to “prepare to come back” before they opt out. Id. at 13. In the opt-out process, one often-overlooked item is malpractice insurance; one malpractice insurer informed me that attorneys who want to take time off and then do part-time legal work should talk with their insurer before leaving full-time practice. Some insurers will provide reduced-price coverage for part-time work, but only for a policy that is uninterrupted.

Most attorneys who are opting out simply leave their law firms, never to return. McGrath urges employers to follow up with women who have left the workforce to care for children and, when appropriate, to carve out part-time projects for them. Id. at 3-4, 15. Although the subjects of McGrath’s study are mostly MBAs, this piece of advice is easily applicable to law firms. For example, most attorneys have discrete non-billable projects that are not related to ongoing cases—such as preparing a speech, writing an article for a law review or bar publication, or doing non-billable research. When senior attorneys are too busy with billable work, they will give these projects to associates. However, associates are not keen on them, because they take time away from the associate’s billable work and because work on non-billable projects may not be fully appreciated at the associate’s annual review. A better route would be to give non-billable projects to attorneys who have temporarily opted out of the firm. The opt-out attorney does not have to worry about billable targets and will often joyously do this work for a relatively small fee. Firms could implement this by, as an example, setting aside $5,000 to $10,000 in a fund to pay opt outs $35 an hour to do special projects; attorneys could apply to the fund to have opt outs do their projects. Small projects keep the legal skills of opt-out attorneys sharp, and they help employers and opt-outs maintain a relationship—something that is rarely, if ever, done today.

In addition, employers should designate a point of contact for attorneys who have opted out. The point of contact can invite the opt outs to attend occasional firm-sponsored training programs or group luncheons.

A Partnership Between the Profession and Academy

Finally, a partnership needs to develop between the profession and the academy in order to promote research into opt-out issues and training and counseling for attorneys who opt out. See Kagan Interview (available at http://www.trialpractice.com/online.htm). For example, Professor Myra Hart of Harvard Business School has developed the “Charting Your Course” program, which is designed to help alumnae assess their options and develop their own personal models of success. See Martha Lagace, Getting Back on Course, HBS Working Knowledge (Sept. 4, 2001) (available at http://hbswk.hbs.edu/tools/print_item.jhtml?id=2457&t=bizhistory). McGrath offers additional solutions for universities. See McGrath, supra, at 16-18. Bar associations can also get involved by developing training programs and brochures for opt-out attorneys who seek to keep their skills sharp.

Former Supreme Court Justice Sandra Day O’Connor opted out for a period of years to raise her children. At the time, she did not have a choice in the matter—she was unable to find child care. Whether Supreme Court Justices of the future will have choices in their careers and personal lives will take action from us all.

About the presenters

Joan C. Williams

Joan C. Williams, a prize-winning author and expert on work/family issues, is the author of Unbending Gender: Why Family and Work Conflict and What To Do About It (Oxford University Press, 2000), which won the 2000 Gustavus Myers Outstanding Book Award. She has authored or co-authored four books and over fifty law review articles (including one of the most cited ever written); her work is reprinted in casebooks on six different subjects; she has given over two hundred speeches and presentations in North and Latin America to groups as diverse as the National Employment Lawyers’ Association, the Denver Rotary Club, the American Philosophical Society, and the Modern Language Association, and has lectured at virtually every leading U.S. university. Founding Director of WorkLife Law (WLL), she joined the faculty at University of California at Hastings as Distinguished Professor of Law in the fall of 2005. She has played a leading role in documenting workplace bias against mothers. Her “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” 26 Harvard Women’s Law Review 77 (2003) (co-authored with Nancy Segal), was prominently cited in Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004). She also has played a central role in organizing social scientists to document maternal wall bias, notably in a special issue of the Journal of Social Issues (2004), which she co-edited with Monica Biernat and Faye Crosby. Her current work focuses on how work/family conflict affects families across the social spectrum, with a particular focus on how caregiving issues arise in union arbitrations. Professor Williams earned her B.A. in history from Yale University, her Master's Degree in City Planning from Massachusetts Institute of Technology, and her J.D. from Harvard Law School. For more information visit www.worklifelaw.org.

Ellen Ostrow, Ph.D.

Ellen Ostrow, Ph.D., is the founder of Lawyers Life Coach LLC, a firm providing executive and career coaching to attorneys and consultation to legal employers. Lawyers Life Coach LLC provides individual and group virtual (by phone with email and fax backup) and in-person coaching and consultation to attorneys and law firms throughout the country on issues related to work/life balance, strategic career management, leadership, effective communication, client development and the role of gender in these matters.

Dr. Ostrow is widely known for her expertise on issues of particular concern to women lawyers. She has been invited to address the ABA, NAWL, NALP, and state and women’s bar associations throughout the U.S. on success strategies for women in the legal profession. She has served on the Advisory Boards of the Project for Attorney Retention and the Project for Attorney Retention – Corporate Counsel and participates on the faculty of the ABA Commission on Women in the Profession’s Women in Law Leadership Institute. Her email newsletter, Beyond the Billable Hour, has been reprinted by print and electronic legal publications throughout the country and she is a contributing writer for the ABA Commission on Women in the Profession’s publication, Perspectives, Trial Magazine, the Legal Times, and Lawyers Weekly, and is the editor of the Women in Law department of The Complete Lawyer.

Dr. Ostrow earned her Ph.D. in Psychology from the University of Rochester in 1980. She has held faculty positions in the psychology departments of three universities and served as staff psychologist in the counseling centers of four universities. She entered the full-time independent practice of psychology in 1987, received her coach training through the MentorCoach ™ program, and currently serves on their faculty. She has been coaching attorneys at all levels of experience and seniority since 1998 and has worked with a variety of law firms throughout the country.

Gail Vennitti

Gail Vennitti is a Partner at PricewaterhouseCoopers, LLP working in the firm’s U.S. Ethics & Compliance Office. Gail joined the firm in 1994. In her current role, she is developing and implementing the firm’s comprehensive compliance framework as well as contributing to the enterprise-wide risk program.

Gail has spent the majority of her career in the firm’s Advisory Consulting Practice specializing in the area of Dispute Analysis and Investigations. She has expertise in financial and economic consulting in all phases of litigation and arbitration. Her consulting experience includes developing damage theories and models, calculating lost profits, business valuation, forensic accounting investigations, intellectual property valuation, real estate valuation, and price erosion. Specific matters include antitrust, breach of contract, lender liability, patent and trademark infringement, securities law violations, fraudulent conveyance and preference actions.

Gail lives in Douglaston, New York with her husband Vince and their three children, Julia age 9, Gabrielle age 7 and Nicholas age 4. Throughout her career, she has taken advantage of the firm’s variety of work-life balance programs including leaves of absence after the birth of each child, flexibility in work schedule from 60% to 80%, recently returning to 100% and telecommuting. Gail was recently featured in a PwC book called “Perceptions" that profiles 16 leaders within the firm. The book is designed to challenge stereotypes, provide role models, and demonstrate the diversity of career paths at PwC. As a member of the Metro Women Partners Advisory board, Gail is involved in developing strategies to advance and retain women in the New York region. She has counseled many women formally and informally in this area.

Portia R. Moore

Ms. Moore is a partner in the San Francisco office of Morrison & Foerster LLP. Her practice concentrates on complex litigation with an emphasis on wrongful termination litigation and sex and race discrimination claims. She received her B.S.N. degree in nursing, with distinction, from the University of Washington, Seattle, Washington, in 1977, and her J.D. degree from the University of Michigan, Ann Arbor, Michigan, in 1982. In her final year of law school, Ms. Moore received the American Judicature Society award and was selected by the faculty to teach legal writing and oral advocacy to first-year law students.

Ms. Moore initially joined Morrison & Foerster as an associate in the Litigation Department in 1982. In January 1986, Ms. Moore accepted a position as an Assistant United States Attorney for the Western District of Washington (Seattle, Washington). As an Assistant United States Attorney between January 1986 and January 1990, Ms. Moore successfully litigated cases involving charges of money laundering, mail fraud, tax violations, continuing criminal enterprise (CCE), racketeering (RICO), and national security issues. While in Seattle, Ms. Moore served as a guest instructor for the Trial Advocacy course at the University of Washington School of Law.

Following numerous successful jury and bench trials, Ms. Moore returned to the San Francisco office of Morrison & Foerster and became a partner in the firm in 1990. Between the years 1991 and 1999, Ms. Moore worked part time as she raised three infant sons, Zachary, Matthew, and Lucas. In 2000, Ms. Moore left the firm to devote her efforts on a full-time basis, to her family. She recently returned to work in the fall of 2005. Her sons, Zachary, 14, Matthew, 9, and Lucas, 6, think it’s pretty cool to have a working mom.

Betty L. Dunkum (Moderator)

Betty Dunkum is the co-chair of the Balancing Work and Home Subcommittee of the Woman Advocate Committee. She is a Senior Trial Consultant with Trial Practices, Inc., a full-service national trial consulting firm. She publishes materials and trains attorneys on jury selection law and strategy and conducts case analysis, focus groups, and mock trials. Ms. Dunkum has extensive experience in complex litigation, including federal and state civil, commercial, employment, construction, constitutional and religious liberties, antitrust, copyright, and trademark litigation. She has worked in all three branches of the federal government, including service as House Budget Committee Associate for U.S. Congressman L.F. Payne. She is a member of the Florida, California, and District of Columbia bars.

Ms. Dunkum received her J.D. degree, cum laude, from Harvard Law School and her bachelor’s degree, magna cum laude, from Williams College. Her biography is featured in Who’s Who in America (58^th ed. 2004), Who’s Who in American Law (14th ed. 2004), and Who’s Who of American Women (25^th ed. 2006-2007). She is the founder and past-president of the Harvard Law School Christian Fellowship Alumni Association. She is a member of the American Society of Trial Consultants and has published articles in the Notre Dame Law Review and The Woman Advocate.