Treating the Woes of the Legal Sweat Shop

Victoria Pynchon
Treating the Woes of the Legal Sweat Shop

When Law Professor Elise Batlan asked me why legal secretaries often make a third less than first year attorneys, I believed I had a set of fail safe answers.

VP: Because the firm bills the first year associate's time at $200+ per hour on a 2,000+ billable-hour year. It pays its associates roughly a third of their billables. A new, untrained associate makes more money than a seasoned secretary because the associate is a profit center and the secretary is not.

Batlan: Why can't the firm bill the secretaries' time?

VP: Because the clients won't pay for it. Secretarial time is considered firm overhead. It's included in the associate's hourly rate.


The secretary behind the lawyer, like the 1950's wife behind the man, remains the invisible un- or under-paid contributor to the family's law firm's,  economic well-being. He, not she, earns the wage. He, not she, holds the prestige. He, not she, is deemed the creator of his own economic value because only his time, not hers, is monetized for the market.

If he leaves the family the firm, she is thrown upon the mercy of the market. Older and less marriageable employable. Knowledgable, skilled and professional, but of decreasing economic value as she ages. Only if he is successful and they are faithful will his status and ability to direct resources in her direction ensure her success. If he fails, she does too, no matter how skilled, diligent and proficient.

The Fifties Housewife is Alive and Well and Living in a Law Firm Near You

That this 1950's economic model exists primarily in the lawyer-secretary relationship today is not surprising given the backward-looking nature of the legal profession, based as it is on the precedent of the past rather than on innovations for the future.

More than 150 years ago, Herman Melville penned the tale of Bartleby, the Scrivener, the story of the lawyer's amanuensis who wrote copy by hand as legal secretaries would later take dictation by shorthand, then by typewriter and dictaphone and finally with keyboard and computer. Today, their typing duties are primarily dedicated to "formatting" unformatted text typed by attorneys whose clerical work is billed at "attorney" rates of $200, $300, even $1,000 per hour.

At the dawn of the 21st century, one of my own law partners said to me, women will eventually dominate legal practice because it's becoming primarily a clerical task.

Nice. I'll go home and file my nails now.

Bartleby on Wall Street

Bartleby - the human instrument who performed legal services on Wall Street in 1850 - drove his employer nearly mad simply by saying I prefer not to. He thereby showed his "master" who was the boss of him. And this was long before collective worker action would force industrialist and professional alike to recognize and fairly reward the efforts of workers who implemented their dreams.

Melville's Bartleby perfectly captured the un-exercised power of the working class to reverse the master-servant relationship. As the lawyer-narrator of Bartleby describes his increasingly desperate plight,

At last I was made aware that all through the circle of my professional acquaintance, a whisper of wonder was running round, having reference to the strange creature I kept at my office. This worried me very much. And as the idea came upon me of his possibly turning out a long-lived man, and keep occupying my chambers, and denying my authority; and perplexing my visitors; and scandalizing my professional reputation; and casting a general gloom over the premises; keeping soul and body together to the last upon his savings (for doubtless he spent but half a dime a day), and in the end perhaps outlive me, and claim possession of my office by right of his perpetual occupancy. . .

For a thorough and thoroughly enjoyable analysis of Bartleby's pertinence to the Occupy Wall Street movement, read Hannah Gersen's Bartleby's Occupation of Wall Street, written by a Wall Street law firm administrative assistant. Thanks to the law.arts.culture blog for alerting me to this great post.

The Triangle Shirtwaist Factory Fire

Sixty years later, the masters of 146 garment workers would die from fire, smoke inhalation, or the trauma of an eight-story fall because no one valued the work and lives of the largely female employees of the Triangle Shirtwaist Factory. The factory's immigrant owners were living the American Dream, oblivious to the contributions of the people who labored to make their vision a reality.

According to the recent PBS documentary Triangle Fire, the government stepped in with its intrusive workplace safety regulations. As the documentary's narrator intoned over photos of the girls' charred bodies, the line between gainful employment and shameless exploitation had been crossed. It was a line drawn in the blood of workers on the sidewalks of New York.

A Modest Proposal for Change

When I told Professor Batlan that a legal secretary's time could not be billed, I was using a subjective monetary account that expressly valued the attorney's work and expressly devalued - by ignoring - the human "overhead" that account included.

Recognizing that we lawyers treat our most loyal human capital as an item of "overhead" rather than as professionals engaged in the same legal enterprise we are - often doing the same work - is the first radical step in the right direction.

The step after realization is study, then implementation. Professor Batlan and I brainstormed possible solutions this morning and I am leaving our first thoughts with you to ponder as we create a more productive, profitable and human workplace for all legal industry workers.

  • Learn about and acknowledge the skills, background, and experience of all your co-workers.
  • Assume that everyone is a professional, able and willing to contribute more than their job description to the enterprise.
  • Examine your workplace hierarchies -- What are they based upon? Do they really make sense?
  • When creating work teams and holding team meetings, include legal secretaries/assistants but do not make them stenographers - use their expertise to craft the short-, medium- and long-term strategy and tactics necessary to achieve the best results at the lowest human cost.
  • Examine how you think of yourself in the workplace - lawyer, mother, father, Christian, Muslim, Jew, woman, man - and whether you'd like your co-workers to place an adjective before your professional identity - woman lawyer, Hispanic secretary, African-American partner.
  • Ask yourself why you might be identifying others with whom you work by race, gender or nationality and what effect that might have on the way you value their services and reward their efforts.
  • Create fully representative groups to discuss the dynamics of the workplace, the relationship between lawyers and non-lawyers, and whether the existing hierarchies and class divisions create an environment where everyone can maximize their full potential.
  • In discussing these sensitive matters within the law firm, promise and maintain a vow of silence outside the group so that dialogue will be open and honest.
  • Be bold enough to envision a structure in which skilled and professional legal secretaries are provided with the opportunity for advancement.
  • Reward your workers based upon their own individual performance rather than upon the success or failure of the attorneys with whom they work.

  • This is part 2 of a multi-part series on the re-working of the modern law firm. Part 1, Women Lawyers and Their Secretaries, an Emotional Sweatshop is here.