Blind allocation of work: farewell unfairness?

The subject of work allocation is one of the most vexing issues in law firms today yet it is one that, until recently, was largely glossed over.

The reason: it involves a shift of thinking, and changes to working practices so long-established that they are accepted almost without question. The law firm model has traditionally been based on individual partners forging relationships with individual trainees and associates. If a junior produces a good piece of work and they hit it off on a personal level the partner will go back to them again – and again.

That system is not without its benefits, but the drawbacks are tangible too, especially for associates. Men are more likely to give work to men: the most obvious example of the unconscious bias that can colour who gives work to whom. Added to that is good old-fashioned conscious bias – the perception that some juniors are ‘better’ than others, which can be unfortunate if you are a good associate who just made a slip-up working for a partner early on.

“In many ways the work you’re allocated early on determines your career”

Then there is the danger of being pigeon-holed or tied to one partner. If you are doing the type of work you are interested in or have won the favour of the firm’s star rainmaker, great. If not, edging yourself into a preferred niche can be a battle.

“In many ways the work you’re allocated early on determines your career,” one City associate says. “I left my last firm because the team was becoming polarised into two areas of work and I reached a fork in the road. I had the prospect of getting more of one type of work, and when that happens your career gets predetermined pretty quickly.”

“One of the more divisive issues is that associates have different ways of dealing with requests from their seniors,” another associate comments. “In every team there will be someone who’ll say yes to everything, and it’s often the less confident people who end up getting all the not-particularly-great work and doing the longest hours.”

Enter ‘blind allocation’. The idea came from the accountancy firms, with a talk given by PwC to diversity champions The 30% Club. Clifford Chance led the law firm pack in reassessing the way work is allocated in 2012, while two firms that have adopted it enthusiastically are Ashurst and CMS Cameron McKenna. They are both rolling it out after successful trials.

At Ashurst, “we, like most firms, had a whole series of work allocation methods that weren’t really work allocation methods at all, but random systems whereby a partner would come out of their room, turn left or right and walk until they found someone to do the work for them”, recalls Ashurst corporate co-head Simon Beddow, who attended that 30% Club talk. “It was really quite difficult to get people to use other people they hadn’t got experience with.”

Blind allocation: how does it work?

It is not that firms have never tried to address the work allocation problem before. Systems of some kind are in place at most firms – the ‘traffic light’ model whereby associates state their capacity as red, amber or green is not uncommon – but in a complex working world such tools are now the equivalent of using a flint axe to fix an iPhone.

Whatever the system employed, it typically falls to partners to take on the responsibility of allocating work, and the data typically provided looks purely at utilisation levels from the previous week and capacity for the coming week. That does not address even the most basic of complications – the recognition that until a week ago an associate might have been working at 150 per cent capacity on a busy matter and actually having a quieter week is not too much of an issue.

And, adds Beddow, “All those systems become devalued anyway because no associate wants to say they have nothing to do.”

These complaints and concerns will come as no surprise to anyone who has toiled away as a big-firm junior – but how does blind allocation actually address the problem?

“The term ‘blind allocation’ hasn’t gone down hugely well with some people because the image you get is that you’re just dipping your hand into a big pot, drawing out random associates and doling them out to partners,” says Dave Cook of Mason & Cook, the company that has cornered the market in introducing work allocation to law firms. “Actually, we gather a huge amount of data and intelligence upfront about each lawyer, their skills and required development areas. We monitor their planned activity closely to ensure we are using more intelligence to provide partners with options as opposed to just sending them the person with a bit of time.”

Words such as ‘data’ and ‘monitoring’ suggest a predominantly technology-driven process but, although there is tech involved, human input is far more central to the whole thing.

“Our focus is on the change of behaviour that’s needed to allow the structured allocation process to work properly,” says Cook, “so the focus for us going into a firm is on the people side as opposed to snazzy software systems – actually, we advise clients not to invest in software until they’ve tested whether it works for them.”

“It was really quite difficult to get people to use other people they hadn’t got experience with” Simon Beddow

Cook’s method involves him working out of a law firm’s office – usually in the corporate department – for three months or more during the transition period. He “spends a lot of time meeting partners and talking to associates”, he says, then uses his credentials as an impartial observer to set up a neutral system for allocating work, which differs from firm to firm.

Once a firm has decided to adopt the system they will need to bring in work allocation managers – people whose job it is to have full visibility of what every associate in the group is doing, along with what they have not done yet and their longer term career aspirations. Ashurst now has three, including one in Australia. In the UK Russell Martin has joined from PwC while Sheena Patel has been at the firm since 2010 and previously served as its resourcing manager.

“Our role is about relationships,“ says Martin. “When you go to HR it can feel a bit formal, but when associates come knocking on my door I can provide a bit of a shoulder to cry on, if that’s what’s needed.”

Changing behaviours

Law firms being conservative institutions, is it a struggle to implement a change like this? After all, the introduction of blind allocation is a huge cultural shift – one that potentially takes away a significant amount of control from partners.

Some see forging relationships with partners as an integral part of rising through the ranks.

“From a partner’s points of view there’s certainly an amount of healthy scepticism whenever we go in,” says Cook. “Work allocation is an emotive area for lawyers, and especially partners, because there’s concern they would lose control of access to associates they have worked with.

“But actually, they retain that control. They have the final say on who works on their matters. What we’re doing is using data and an intelligence-driven process to provide them with a wider pool of options of relevant and suitable individuals that have the right levels of capacity.”

Cook’s company goes through a major engagement process before it even starts to introduce its methods, involving a lot of partner workshops and discussions around how the idea will work.

From the perspective of a partner wanting to try and introduce it, Beddow says he explained the idea to the partners in the corporate group and how he hoped to trial it.

“I said I had no preconceived ideas and that all I asked was that everyone engaged constructively and with an open mind,” says Beddow. “I’m sure there were people who were sceptical but, to be fair, they embraced it right from the start.”

It helps that the benefits quickly become apparent, and that one of those benefits directly addresses a key aspect of partner life.

“It saves partners a lot of time,” says Beddow. “Instead of schlepping around for two hours trying to get a team together you can pick up the phone, tell the person at the other end what you want in five minutes, and someone comes back and says – here’s your team.

“Typically, with the firms we’re going into there are partners who are responsible for work allocation. It’s a big commitment of their time to run that. And they’re usually welcoming of someone coming in to take that process away from them.”

There is also a suggestion bringing in a resource manager could shine a light on flaws in accuracy of billing at associate level.

“Centralising allocation means there’s nowhere to hide when it comes to billing your hours,” says one lawyer. “Struggling associates might take five hours to do some work but bill it as two. They’re under pressure from partners not to put too much time on the clock because on the bill the client isn’t going to want to pay for the associate’s personal development. The management consultancy option neutralises that.”

The gender question

“One of the pieces of advice when I was thinking about when introducing this was don’t pitch it as a gender initiative, pitch it as solving the problem of making sure our lawyers are more evenly busy, finding out who’s got capacity, and broadening the experience of our team,” says Beddow.

But it is clear that resolving the latter problems could help address the issue of the lack of women coming up through the ranks to make partner.

One of the obstacles to female promotion less commonly talked about is getting them access to the right work to build up their CV to look like partner material.

“If you have a firm where most partners are male and you’re a male partner walking down the corridor looking for an associate to give work to, the chances are you’ll find a man because there’s of unconscious bias, “Beddow says.

One of the ways of breaking that down is to introduce a more impartial method of allocation.

Measuring success

Ashurst ran surveys before and after it piloted work allocation and the results are striking, with big jumps in satisfaction among partners and associates, who now see the work allocation system as considerably fairer (see graphic). It has not entirely solved the problem – post-pilot a third of associates still do not think everyone is evenly busy – but matters have clearly improved.

Much of the evidence is anecdotal.

“I’ve had a lot of people saying – I’ve been wanting to work for Partner X for years and never had a chance until now,” says Beddow. “Conversely, there are people who have done nothing but work for Partner Y and now have a safe and politically acceptable way to stop doing so.

“In the latter cases it’s usually less about personality clashes than work. People can get stuck in one type of work for years and have no way of saying no.”

Meanwhile, in the wider market recruiters are reportedly more often hearing the question – does the firm you’re suggesting I go and work with have work allocation systems? And the answers are influencing associates’ decisions.

One size doesn’t fit all

Blind allocation sounds great in theory but can it work for every firm, or every practice area?

“It will work for every firm,” Cook asserts. “The firms we have worked with so far have been medium-to-large-sized outfits. If you’re looking at smaller firms – or smaller practice groups within firms – it would work a slightly different way – a more technology-led process will give them the same sort of visibility but without the same investment in hiring people to manage the process.”

There are similar considerations to be taken into account when it comes to practices.

“How it’s approached and applied differs within each practice group,” concludes Cook, “but the fundamentals are similar. You know there’s a central person that’s responsible for having complete awareness of what’s going on.”

The nature of the work in a corporate department will typically allow for more flexibility among the lawyers compared with a finance department, which usually has more of a focus on individual products. But while finance lawyers working on Product X might not have the skills to work on Product Y, increased visibility means lawyers from overseas offices can more easily be brought into the picture.

The trainee question

How do the trainees fit into all this? After all, the work you get at that level can have a huge effect on the rest of your career.

“I fell right into the middle of an important and all-encompassing trial in my litigation seat, which meant I was already on track to get into that department on qualification,” recalls one mid-level City associate. “There’s a degree of luck involved: I worked with that partner for years afterwards and he was one of the most high-profile people at the firm.”

“One thing we didn’t want to do is take away supervisory responsibility from the senior associate,” says Cook. “That’s really important – for both the senior associate and for the trainee.”

For that reason a ‘lighter touch’ approach is typically taken with trainees than with associates. Not everything they do is tracked and instead the approach is understanding where the capacity is and supplementing the work of the supervisor with things will support their experience within their seat.

Even with this more hands-off approach, something seems to have struck a chord with trainees.

“We’ve seen the conversion rate of trainees wanting to qualify into the areas that have been using work allocation increase,”says Cook. “That’s because they’ve experienced it to a degree as a trainee, but more importantly they’ve seen how it operates with the associates.”

What’s next?

Blind allocation is still in its infancy. So what happens next? Cook says the number of firms adopting it looks set to expand. “Last year we were talking to a lot of firms and then Brexit put a pause on things, but it didn’t necessarily reduce firms’ appetite. It’s just that people wanted to assess the impact of Brexit before stepping forward and committing. Brexit isn’t hitting firms quite as badly as was initially thought and the number we’re talking to that are looking to get started this year has gone through the roof.”

The company says it is in advanced discussions with several firms about launching pilot schemes.

“Growth in terms of more firms adopting it is what we’re going to see over the course of the next two to three years,” Cook predicts. “The appetite from firms is to get it in and get it structured so that you’re covering the firm as a whole. It does take time.”

A firm that is running a pilot within one practice group will be looking at an eight or nine-month period to do that. If they then want to roll it out to another practice group and then another, it can end up being a couple of years before it is fully implemented.

It does appear inevitable that most firms will sign up – and sooner rather than later. Along with agile working, it is catering to what the millennials want from their career. But what about after that when, theoretically, every firm has adopted some kind of blind allocation system? Can it be refined or further developed?

“The next stage of development is to get more sophisticated technology to support it,” Cook predicts. “That’s something I think will increase once firms have the structure and the function in place.

“Going on from there it will be about integrating into other areas of the firm as well. It will be about professionalising and developing the function further and ensuring there are extremely close links with HR from a people perspective, but also things around pricing and legal project management.”

Beddow takes a different line.

“We hear a lot from associates that there could be more regular feedback,” he says. “We’re looking to put in place a system whereby the work allocation managers will send an instruction to submit feedback once a deal has finished.”

Although Beddow does not envision it happening at Ashurst in the immediate future, ultimately if that works and the provision of feedback becomes a constant stream instead of a series of perfunctory updates, he says there is no reason why the firm could not do away with the annual performance review in the same way that some of the professional services firms have dumped it.

“There’s a long way to go for us yet, but I ­certainly wouldn’t rule it out as a possibility,” he says.

Happy holiday

Going further, could blind allocation give lawyers their holidays back?

“When I was a young lawyer I used to sit down with someone and say – I’m going on holiday so here are the details of what I’ve been working on, and then I’d quite simply be out of any sort of radio contact,” recalls Beddow. “We’ve lost all that. Now, people are in constant touch on their BlackBerrys. I’m keen to find a way of regaining that old sense of detachment and the new ­methods of work allocation give us the means to do that.”

The method is obvious: if the work allocation managers know in advance who has capacity and who is going on holiday, they can match people up, sit them down together in a room and have an orderly handover.

“In the modern age it’s not realistic to think you can forget about everything for two weeks, but a lot can be taken over by somebody else,” adds Beddow, “but a five-minute check-in each day is much less disruptive than constant emails, and is potentially a way of making sure lawyers get proper downtime. There’s potentially a big prize there if we can get it right, but part of it will be persuading people who’ve never been on holiday that this is what you do.”

But for Beddow the biggest question remains the one around gender: “No firm has really cracked the diversity dilemma.

“I suppose my goal is that in the next couple of years we have more female candidates coming through who have been properly prepared for partnership. That will be the real testament to this having worked.”