More Than Mere Lip Service: A Mansfield Rule for Well-Being

Cecilia A. Silver* June, 2023

Introduction

Law firms’ watchword is well-being. “Never in history have organizations around the world devoted so much attention and capital to improving employee mental health and well-being. It is lamentable that these investments are not always providing a good return regarding improved outcomes.”¹ In the legal arena, a 2021 report from the Institute for Well-Being in Law echoed this sentiment, determining that while 99 percent of law firms have some type of well-being program, these measures did little to nothing to address internal, structural issues that perpetuate the lack of attorney well-being.²

Law firms cannot continue to espouse a well-being ideology that “shift[s] blame from institutions to individuals.”³ Unsurprisingly, fealty to the American Bar Association’s well-being pledge⁴ does not eradicate the billable-hour pressures at the root of many lawyer-well-being problems.⁵ Rather, “[w]ell-being is a team sport.”⁶ To prompt meaningful, profession-wide change, firms need to do more than prescribe stress-reduction techniques and subsidize gym memberships.

Generating a list of well-being friendly firms is a start;

industry-ranking company Vault introduced “wellness” in 2021 as a category for gauging the best large and midsized law firms to work for based on associate feedback.⁷ But to make real progress, firms should take a holistic, interconnected tack to well-being and inclusion, “embed[ding] lawyer well-being as an institutional piece of their DEI efforts.”⁸ Similar to how the Mansfield Rule, a diversity initiative, sets “consideration goals” to create a pipeline to legal leadership roles,⁹ a comparable standard should be established for firms to cultivate a culture of well-being.

This Essay calls for law firms to pursue a preventative, systemic approach to well-being. Part I recounts the wretched state of firms’ well-being programs, which present individual solutions to pervasive problems. Part II describes how the Mansfield Rule’s clear criteria and extensive certification process have helped firms make inroads in diversifying firm leadership. And Part III proposes a well-being analogue to the Mansfield Rule so that firms’ well-being bite matches its bark.

I. Passing the Buck

The current state of well-being affairs is abysmal. The 2021 ALM Intelligence Mental Health and Substance Abuse Survey revealed that more than 70 percent of responding lawyers suffered from anxiety.¹⁰ Eschewing “hustle culture, grind culture, and toxic work environments,” a record number of employees left their jobs in 2021, a phenomenon dubbed the “Great Resignation” or “Great Reshuffling.”¹¹ Lost productivity and low morale abound.

Emblematic of firms’ well-being woes is the wholesale lack of lawyer vacations. “Attorneys are famous for not taking time off” given the pressures of constant client demands and incessant business needs.¹² To tackle this problem, about 40 percent of firms allow so-called “unlimited vacation time.”¹³ The policy looks good on paper: an “unlimited” vacation option is meant to encourage autonomy and empower lawyers to decide what amount of vacation is appropriate.¹⁴ But far from the seemingly altruistic reasons for adopting an “unlimited” vacation model, many view the shift as a cost-cutting measure in disguise, a way for firms to skirt their obligation of paying departing attorneys for accrued time off.¹⁵ And muddled expectations about what is acceptable and the “machismo around overwork”¹⁶ pressure lawyers into never taking time away.

Associates’ anxiety about availing themselves of an “unlimited” vacation policy—that employers will view them as either abusive or lazy—is borne out by the research. A 2018 Vault survey found that only 31 percent of associates used all their allotted vacation days.¹⁷ Without a fixed number of days to plan, associates fear that they’re sacrificing opportunities for career advancement if they go on vacation.¹⁸ As a result, associates at firms with “unlimited” vacation policies wind up taking fewer days off because they have more guilt about going on vacation than colleagues at firms with fixed vacation days.¹⁹

Even when associates dare to take vacation, they cannot unplug. This constant accessibility, reflected in a recent tweet,²⁰ resonates with law firm lawyers:

Graphical user interface, text, application, email
Description automatically generated

The common refrain is that, as a client services business, firm lawyers are being paid—handsomely—for their availability.²¹ But “[m]oney is a good deodorant for other problems.”²² The point of vacation is to avoid burnout²³ and come back rejuvenated; lawyers’ need to be constantly reachable, to never be off duty, hampers this goal.

Employers should encourage and protect vacations as an antidote to the prestige-, work-, and advancement-obsessed legal profession. In their study of 6,000 practicing lawyers, law professor Larry Krieger and psychology professor Kennon Sheldon found that the number of vacation days attorneys take is a strong predictor of their well-being—an even stronger predictor than income level.²⁴ What’s more, forgoing vacation time can contribute to anxiety, depression, alcoholism, and burnout.²⁵ In fact, research suggests that taking regular vacations may be “as vital to emotional and physical well-being as exercise or a healthy diet.”²⁶ Employees who take frequent vacations are less likely to be depressed, tense, or tired; have a reduced risk of heart disease; and report being more interested and productive in their work on their return.²⁷ So vacation shouldn’t be viewed as a “dirty word.” Clear vacation policies mandating days off coupled with an organizational culture that supports detachment from work will give employees the chance to recharge, ultimately improving their outlook and well-being.

And firms would benefit, too—neglecting well-being and burnout creates organizational problems. Roughly 75 percent of associates leave their firms within five years, and replacing an associate ranges from $200,000 to $500,000.²⁸ This financial toll doesn’t even account for the annual costs—fiscal and psychological—from any current lawyers’ absenteeism or presenteeism.²⁹

But most companies view well-being and burnout as personal problems.³⁰ So, despite employers’ well-intentioned wellness efforts, “many concentrate on individual-level interventions³¹ that remediate symptoms” rather than prevent—and resolve—the causes of employee burnout.³² Exemplifying many top-revenue-generating law firms’ approach, one Vault top-twenty firm touts its well-being track record of providing best-in-class health benefits, opening an on-site health center in the mothership office, and signing the ABA’s well-being pledge.³³ It ballyhoos its programs on nutrition, exercise, sleep, stretching, anxiety, depression, and loneliness.³⁴ And, as part of a well-being webinar, president of Total Life Counseling Center-Dallas Dr. Jada Jackson exhorted associates and firm alumni to “unplug . . . your professional life” and “separate your job from your everyday life and who you are.”³⁵ Another Vault top-twenty firm prides itself on its concierge and “errand-running” services so that its lawyers can “preserve personal time for the things that matter most.”³⁶ To be sure, these perks have their upsides. But these “fixes” typify the lawyer well-being movement’s “individualistic focus”³⁷ by putting the onus on associates to find—and use—the resources on offer.³⁸ “Individual skills cannot compensate for unsupportive workplace factors.”³⁹ An associate cannot go to a spin class if their schedule is full and their energy is depleted.

Law firms cannot “‘yoga’ [their] way out of these challenges.”⁴⁰ While the Well-Being Toolkit for Lawyers and Legal Employers the ABA rolled out in 2018 was chock-full of wellness suggestions,⁴¹ no meaningful change has come about. If a firm’s business model pressures associates to always be on call⁴² and views “billable hours as the main yardstick of success,” burnout and turnover rates will continue to be high.⁴³ Rather, to have a lasting impact, firms need to envision systemic solutions to improving the professional culture beyond just focusing on individual tactics.⁴⁴

Treating well-being as a strategic priority is a prerequisite for success. In interviewing the top-ranked well-being firms to glean best practices, Anne Brafford, Co-Chair of the ABA Law Practice Division’s Attorney Well-Being Committee, discovered that they “infuse well-being into all aspects of what the law firm does.”⁴⁵ Sustained attention and support from leadership also is critical.⁴⁶ An integrative process, always “asking the wellness question,” and connecting programming to a way of doing business versus a “siloed initiative” of one-and-done webinars is key to making progress.⁴⁷ So beyond social and moral justifications, firms should emphasize well-being to better their bottom lines.

II. The Mansfield Rule: Fostering Inclusion and Uplifting Underrepresented Lawyers

The Mansfield Rule has become the most ubiquitous credential evincing a law firm’s commitment to inclusive promotion and hiring practices.⁴⁸ Aimed at increasing diversity within law firms’ leadership ranks, the Diversity Lab debuted the Mansfield Rule and its accompanying certification process in 2017.⁴⁹ Named after Arabella Mansfield, the first woman admitted to practice law in the United States, the Mansfield Rule draws inspiration from the NFL’s Rooney Rule, which requires every NFL team to interview at least one minority candidate for head coach vacancies.⁵⁰ In the legal context, the Mansfield Rule “measures whether law firms have affirmatively considered at least 30% women, lawyers of color, LGBTQ+ lawyers, and lawyers with disabilities for leadership and governance roles, equity partner promotions, formal client pitch opportunities, and senior lateral positions.”⁵¹

The Mansfield certification process ensures visibility, accountability, and credibility.⁵² By articulating clear benchmarks, clients can evaluate—and compare—firms’ commitment to broadening the pool of historically underrepresented lawyers for leadership, advancement, and business development. So the stakes are high: compliance can make or break firms obtaining and retaining business.⁵³ It’s no wonder certifications have mushroomed from an initial thirty-five-firm group in 2017 to 165 large law firms in 2022.⁵⁴ Firms are putting their money where their mouths are.⁵⁵ And with more than 75 percent of Am Law 100 firms now Mansfield certified, adhering to Mansfield principles is now the industry standard.⁵⁶

The proof is in the pudding. The thirty-plus early-adopter law firms—those that have attained certification year-over-year since the Mansfield Rule’s launch in 2017—have outpaced non-Mansfield firms’ progress.⁵⁷ Early Mansfield Rule adherents increased the racial and ethnic diversity of their management committees by thirty times the rate of non-Mansfield Rule firms.⁵⁸ Several firms have even reached Mansfield Certification Plus status, indicating that the firms have achieved at least 30 percent underrepresented lawyers in leadership positions.⁵⁹ Championing the Mansfield Rule has given firms’ DEI endeavors teeth.

III. Proposed Criteria for Ensuring Lawyer Well-Being

Building on the success of the Mansfield Rule, law firms should include well-being as an extension of their DEI efforts. Expanding the Mansfield Rule to encompass well-being goes hand in glove with Diversity Lab’s mission of enhancing diversity in law firms.⁶⁰ A lack of diversity perpetuates and exacerbates well-being issues for lawyers in underrepresented groups, which, in turn, contributes to attrition and underrepresentation.⁶¹ A uniform set of criteria addressing law firms’ structural and systemic concerns would signal to firms’ current lawyers that their employers take well-being seriously. Embracing a well-being-focused Mansfield Rule would be a powerful recruiting tool as well.

Fashioning a well-being counterpart to the Mansfield Rule would also guide in-house counsel when deciding which outside firms to retain. Because in-house counsel seek to avoid turnover costs and losing institutional knowledge, there is a business case for prioritizing and promoting well-being.⁶² For instance, multinational conglomerate 3M asks law firms to specify actions they have taken to advance well-being among their lawyers.⁶³ Along these lines, in-house legal departments can exert their influence, bringing long-needed change and consistency to law firms’ well-being efforts. “In-house attorneys are the client, and as clients [they]’re the ones that can facilitate change because [they] hold the purse strings.”⁶⁴ Firms risk losing business and talent if they fail to implement effective, ground-level reforms.

By outlining metrics for firms to aspire to, a well-being Mansfield Rule equivalent would ensure transparency and accountability to boost firms’ commitments to well-being. At a bare minimum, creating a dedicated well-being position shows lawyers that a firm genuinely cares about well-being issues.⁶⁵ Professor Katrina Lee goes a step further, advocating for law firm partners to allocate a set percentage of partnership profits to fund well-being initiatives.⁶⁶

But to go beyond a check-the-box exercise, firms need to transform law firm culture by allowing their lawyers time away from work. Taking a page from Orrick LLP’s playbook,⁶⁷ firms can devise an “unplug policy” granting attorneys forty hours of billable credit to take at least one full week of true time off.⁶⁸ Another Orrick-proven strategy is to design a “focused Fridays” and limited weekend emails program to dissuade scheduling nonessential internal Friday meetings and sending non-client-related emails on weekends.⁶⁹ Carving out—and protecting—time for lawyers to disengage from work is essential.

Other features of a Mansfield Rule well-being regime could include:

Flagging when associates work excessive hours several months in a row
Awarding billing credit for well-being work akin to how firms treat—and value—pro bono participation
Setting a minimum expectation of how much vacation lawyers should take
Mandating lawyers take at least one consecutive week of leave
Displaying a notice like the Microsoft Outlook “send tomorrow during working hours” banner on emails to prompt lawyers to consider whether they need to send an early morning or late-night email
Encouraging email signatures that acknowledge different time zones and working patterns

A robust certification and enforcement mechanism is vital to ensure that firms don’t just cherry-pick from the list of criteria. Diversity Lab’s rigorous procedures guarantee that firms adhere to the Mansfield Rule in its entirety.⁷⁰ Becoming a Mansfield-certified firm requires concerted, sustained effort, and the commitment to certifying annually keeps firms from backsliding.⁷¹ So folding well-being guidelines into Diversity Lab’s existing Mansfield Rule certification process provides an elegant solution, leveraging its expertise and existing relationships with law firms.

Conclusion

Lawyers are craving change on the well-being front. In legal recruiter Major, Lindsey & Africa’s 2022 Law Firm Culture Survey about desired firm attributes, nearly 40 percent of respondents wanted more done to promote attorney well-being and work-life balance.⁷² “Supporting associates, rather than throwing them into the maelstrom to sink or swim, is the least law firms could do to develop and retain talent that is increasingly unwilling to put up with the old way of doing things.”⁷³ Particularly for Gen Z lawyers, it’s about furthering sustainable work, enabling lawyers “to have a sense of control . . . , flexibility, and sufficient time for daily recovery.”⁷⁴

Subscribing to a well-being-oriented Mansfield Rule—delineating measurable standards geared to combatting the ritual overwork endemic to law firms—would ensure that firms’ well-being offerings are no longer “band-aid[s] over a bullet wound.”⁷⁵

* Director of Legal Research and Writing and Senior Research Scholar in Law, Yale Law School. I am deeply indebted to Jason Lichter for early inspiration and to Catherine Cazes for her insightful comments. And thanks to Alex Levin, Brillian Bao, Jacqueline Diggs, Allison Goldman, and Stephanie Chin at the Michigan Law Review Online for their hard work and thoughtful suggestions. I dedicate this Essay to my daughter, Camilla, who motivates me to make the working world a better, kinder place for her.