March 19, 2012
The Off Chance
A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.
The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.
There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case) had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.
The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.
The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:
On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.
February 27, 2012
The Georgia Supreme Court has disbarred an attorney, primarily based on misconduct in a paternity matter.
The attorney was retained by a client who had a DNA test that confirmed he was not the child's father. The matter was continued twice, with the attorney present both times. The case was then mistakenly reset for a Monday rathar than a Wednesday. The error was corrected and notices went out for the Wednesday hearing.
The attorney moved to withdraw prior to the hearing but the motion was not acted on. On the Monday, the client went to the attorney's office, made a fee payment, and went to court. The client realized "that something was amiss" and was advised of the date change. The client came back on Wednesday; the attorney never appeared despite repeated phone calls and assuarnces to the client that she would meet him in court. The matter was dismissed that afternoon.
The attorney falsely claimed in the bar proceedings that she appeared on both Monday and Wednesday. Four people testified to the contrary. (Mike Frisch)
December 15, 2009
No Agreement To Arbitrate
An attorney was hired as "of counsel" of another attorney under a one-year employment contract on November 1, 2005. The contract authorized discharge for cause and had an arbitration clause. The employment relationship had "issues" but extended past the fixed term. Eventually, the employed lawyer was discharged with notice given in August 2007. The parties disagree as to the reasons. The employed lawyer sued the employing lawyer on claims that included wrongful discharge. The employing lawyer moved to dismiss, invoking the arbitration clause.
The Washington State Court of Appeals, Division I held that the there was no basis to conclude that the lawyers agreed to extend the arbitration provision beyond the fixed term:
Where a fixed-term employment contract expires and the employee continues to render the same services provided under the previous agreement, a court will presume that the employee is serving under a new, implied contract having the same terms and conditions as contained in the expired contract. However, where it is clear that the implied contract does not have the same terms and conditions as the earlier agreement, there is no basis
to presume that the contracting parties necessarily renewed any specific term of
the prior agreement. Because the evidence in the record and the pleadings
herein establish that Judith Lonnquist and Reba Weiss did not completely renew
the terms of Weiss's written, fixed-term employment contract after Lonnquist
terminated it, there is no basis to presume that the parties subsequently entered
into an implied agreement to arbitrate Weiss's employment-related claims as was provided for in the terminated contract. Inasmuch as a court cannot compel litigants to arbitrate claims unless they agreed to do so, the trial court correctly denied Lonnquist's motion to compel arbitration. Accordingly, we affirm.
June 10, 2009
Deferred Associates May Serve As Judicial Interns
The Massachusetts Committee on Judicial Ethics has issued an advisory opinion on the propriety of allowing law firm associates with a deferred start date and financial benefits to serve as unpaid judicial interns. The committee does not view the proposed hiring of interns as prohibited:
Second, your inquiry raises the issue of whether the volunteer interns are a "gift" or "favor" to the judges of the Trial Court from the law firms. Section 4D(5) prohibits a judge from accepting "a gift, bequest, favor, or loan from anyone except for" certain situations, none of which applies here. The Committee is of the opinion that, even if the volunteer interns are gifts or favors from the law firms to the judges of the Trial Court, they are permissible under the Code given the double blind structure of the proposed program. "The Code must be read as a whole. . . . [and] [t]he Canons and Sections are rules of reason. Some conduct that may literally violate a provision of the Code [i.e., Section 4D(5)(h) here] will be permissible because it does not violate the policy behind the prohibition or is de minimis." Preamble to the Code. As concluded for the reasons described in this opinion, a disinterested objective observer would not question the impartiality of the judges of the Trial Court when the law firms donating the volunteer interns appear before the judges. The program therefore would not violate the policy behind Section 4D(5)(h) and is permissible under the Code.
October 02, 2008
A new low in the collegiality wars
A friend of mine from Houston forwarded me this letter (here), which has to be a new low in collegiality. [Nancy Rapoport]
July 29, 2008
Class of 2007: A More Extreme Bi-Modal Distribution
[By Bill Henderson, cross-posted to ELS Blog]
NALP just published its 2007 edition of Jobs & JD's. One topic of interest to students, lawyers, law firms, and legal educators is the change in salary distribution from 2006 to 2007. The now famous 2006 bi-modal distribution was vivid evidence that the U.S. legal profession is undergoing significant structural change. As shown in the graph below (from this NALP webpage entitled "Another Picture Worth a 1,000 Words"), the underlying stressors are even more pronounced for the class of 2007.
The sample is based on 23,337 law school graduates from the class of 2007 who reported salary information. Note, however, that 197 ABA-Accredited law schools graduated 43,518 students in 2007. Although we know the types of jobs taken by 40,416 grads, only 57.7% of this group provided salary information. If I had to wager on the direction of underreporting, I would predict it was under-inclusive of graduates with lower salaries and those who did not pass the bar. Why? Aside from the human psychology that it is easier to share flattering rather than embarrassing information, the roughly 7,500 jobs under the second mode are fairly close to figures I have seen from ALM and NALP data, which are provided by large law firms rather than individual students. See, e.g., charts in this NLJ article.
This bias, however, is not necessarily good news. In the above graph, 32.5% of the law graduates took jobs with starting salaries in the $100K+ range; but the true percentage for the class of 2007 is probably lower. Some facts and then one normative observation. The facts first:
More after the jump ...
- 91.9% of 2007 graduates were employed 9 months after
graduation, which compares favorably to 2006 (90.7%), 2005 (89.6%),
2004 (88.9%), and 2003 (89.0%). I would like to believe these numbers
- 76.9% were in jobs that required bar passage. [It would be useful to disaggregate the jobs in the remaining 23.1% of law school graduates. Who are these students? How many entered law school with no intention of practicing law? ]
- The median salary in the above distribution is $65,750; the mean is $86,396. But these measures of central tendency are not reliable guides of future earning power.
- 38% of all starting full-time salaries were less than $55,000 per year, including 18% of all jobs in private practice, 27.5% in business, and 70.0% in government (excluding judicial clerkships).
- 79.6% of law firm jobs in NYC, 80.3% in Washington DC, and 74.9% in Boston were in firms with 100+ lawyers. Even in Indianapolis, 50.4% were in 100+ lawyer firms. Wow! those are big numbers.
See also NALP Press Release, July 24, 2008. On the normative front, I have a simple thesis: the bi-modal distribution is bad for students, bad for law firms, bad for clients, and bad for law schools. [When I showed the 2007 distribution to one law school dean, she shielded her eyes!]:
- Students. It is bad for students because at $160,000 per year, many corporate clients will ask that you not be assigned to their matters. And if your initial work experience is document review, a $160K job can quickly become a dead-end because your skill set is not growing with your billing rate (avg. 1st yr billing rate in a $160K+ firm is $225 to $255/hr). So the atmosphere among associates at $160K+ firms is probably becoming more competitive. It would be better in the long run to start at $95K, learn your craft, and become a great lawyer who commands top dollar. And young lawyers should think long run.
- Clients. This is bad for clients because the short term solution of requesting only midlevels and partners will eventually constrict the supply of incoming legal talent. When clients and law firms try to externalize the cost of mentoring and training--here I mean observation, contact, and feedback from partners and clients--associates are more likely to leave.
- Law Firms. Actually the bi-modal distribution is only bad for firms trying to keep pace with the Am Law 200 salary pay scale. In contrast, boutiques and organizations like Axiom will find general counsel more interested in their value proposition. For Am Law 200 firms, the difficulty is getting partners to commit themselves to the future of the firm by spending more time and money investing in associates. This will reduce attrition and protect the brand. But the $160K+ cost structure provides partners with strong incentives to bill hours rather than investing in the long term future of the firm.
- Law Schools. The economics of the bi-modal distribution take the pressure off elite law schools--indeed, they can raise tuition! Thus, for many law professors, the best outcome is lateraling into a Top 15 law school. But more/better law review articles--a precondition of a lateral offer--is not going to solve the difficult institutional problems of lower ranked schools. Now more than ever, all law faculty members need to understand the structural shifts taking place in our profession. When faculty at Harvard and Yale ignore these changes, it does not mean that these changes are not important. It just means that Harvard, Yale, et al. are not affected.
I don't have any solutions to these issues, though I did write up some useful insights in my prior post, "Part II: How law firms misapply the 'Cravath System.'" Our situation reflects difficult collective action and coordination/signaling problems. For example, how a firm gracefully bows out of the salary wars is an immensely difficult problem. I do think, however, that permitting nonlawyer investment would provide law firms with the financial wherewithal (and psychological courage) to experiment with more innovation. And that would be good. Larry Ribstein's scholarship is now more timely than ever. See, e.g., here and here.
When I was an interim associate at Sidley & Austin the summer after the 2000 salary wars, a partner told us that "we are all going to hell" based of the jump in salaries from $95K to $125K. I now worry that he may have been right.
Part II: How most law firms misapply the "Cravath system"
[Posted by Bill Henderson, cross-posted to ELS Blog]
In my last post, I discussed the linkage between the bimodal distribution and the emphasis on credentials under the "Cravath system." I also stated that most law firms misunderstood the internal logic of the original Cravath model and promised to elaborate in a subsequent post. This is the promised entry.
One note of context: this post is not a history lesson. The
Cravath system reflects a profoundly powerful method of developing
human assets. Cravath started with very good associates/inputs and
turned them into truly exceptional lawyers who were in high demand by
clients and other firms. Moreover, the Cravath system required
lawyers to work together collaboratively to further the clients'
interests. This resulted in efficient and highly effective legal
services that engendered the abiding loyalty of clients and more demand
for the firm's services. See Results or Résumés at
4 & n. 13 (discussing concept of firm-specific capital). In other words, under
the true Cravath system, everyone comes out ahead. Two caveats: (1)
the first-mover--here, Cravath 108 years ago--garners the most benefit;
(2) if a firm neglects a key element--e.g., investing in
associates--the model generates no competitive advantage.
[Sources: The Cravath system described below come primarily from Robert Swaine's 1948 history of the firm and other contemporaneous sources from the 50s, 60s, and 70s, which I will cite as appropriate.]
Recruiting Elite Law School Graduates
One of the hallmarks of the Cravath system is the recruitment of elite law school graduates. As of 1948, Cravath, Swaine & Moore and its predecessor firm had employed a total of 454 law school graduates as associates. Of this total, 67.7% attended Harvard (128), Columbia (124), or Yale (54). According to Swaine, "in recent years there has been an increasing number from the law schools of the Universities of Virginia and Michigan." These two schools rounded out the top five : (UVA 30, Michigan 26).
Cravath's emphasis on credentials, however, had a clear economic logic that was designed to compensate for the deficiencies of early 20th century legal education. During this period, most law schools required little or no college education. In contrast, Harvard, Columbia, and Yale grads typically had a college degree before entering law school. Swaine writes,
Cravath believed that disciplined minds are more likely to be found among college graduates than among men lacking in formal education ... .
Cravath believed in seriousness of purpose--a man with a competent mind, adapting to practicing law according to Cravath standards, should have made a good scholastic record at college. But he recognized, without full approval, the tradition of the early decades of this century--that "gentleman" went to college primarily to have a good time and make friends. Hence, while a good college record was always a factor in favor of an applicant, lack of such a record was not necessarily an excluding factor. ... [I]n the stern realities of the depression of the '30s, however, college records of applicants came to have added importance.
Yet, "[f]or a poor law school record Cravath had no tolerance." Candidates who "had not attained at least the equivalent of a Harvard Law School 'B' either had a mind not adapted to the law or lacked purpose and ambition ... ." Thus, the "first choice" was a "Phi Beta Kappa man from a good college who had become a law review editor at Harvard, Columbia or Yale."
Note, however, that Cravath's emphasis on credentials had a clear business purpose designed to compensate for the limitations of legal education. During the first half of the 20th century, going to an Ivy League law school did not guaranteed legal aptitude. Prior to advent of the LSAT in 1948, college grades were the only predictors of success in law school. In 1955, The "LSAT Handbook" included cross-tab tables of LSAT scores versus law school performance for several individual law schools. At Harvard Law, roughly 1/3 of the class scored below the 50th percentile. On the west coast, UC Berkeley had a similar wide range of LSAT scores. See The Law School Admission Test and Suggestions for Its Use (ETS 1955). The clear relationship between LSAT and grades subsequently encouraged law schools to revamp their admissions criterion. But that process took decades. See Lunneburg & Radford, The LSAT: A Survey of Actual Practice, 18 J. Legal Educ. 313 (1965).
In a talk at Harvard Law School, Cravath stated that a successful "lawyer of affairs" (aka corporate lawyer) assumed "the fundamental qualities of good health, ordinary honesty, a sound education and normal intelligence." On top of these attributes, a candidate must have "character, industry and intellectual thoroughness, qualities that do not make for charm but go far to make up that indefinable something that we call efficiency. Brilliant intellectual powers are not essential."
More after the jump ...
Developing Human Assets
Under the Cravath system, the inputs themselves (i.e., qualified associates) had little value to clients. Rather, they needed to be trained by the investment of intensive training. Over a period of years, that investment created the remarkable efficiencies and superb quality that bonded clients to the firm.
The Cravath system was build upon an incentive structure that encouraged young lawyers to acquire skills at an optimal pace. Further, the firm was intent on inculcating its superior work habits. "Cravath believed that a staff trained within the office would be better adapted to its methods of work ... and hence he insisted that the staff be recruited, so far as possible, from men just out of the law schools." Cravath also ended the practice of associates having their own clients and working on firm's matters in exchange for a desk room. "Cravath could not tolerate the inefficiency and divided loyalty implicit in such an arrangement. ... [E]very associate, including the man fresh from law school, was put on a salary."
Once in the firm, associates where placed on matters in a way that rounded out their professional training. According to Swaine,
Cravath preferred that men should not specialize in such branches of the law as real estate or administration of estates or, later, taxation, until they had attained a general experience over several years. This objective required that a man should not be confined to the work of one client or be assigned to one partner for any undue length of time.
At the outset of the practice Cravath men are not thrown into deep water and told to swim; rather, they are taken into the shallow water and carefully taught strokes. The Cravath office does not follow the practice of many other offices of leaving small routine matters entirely to young men fresh from law school without much supervision ... . Under the "Cravath system" a young man watches his senior break a large problem down into its component parts, is given one of the small parts and does thoroughly and exhaustively the part assigned to him--a process impracticable in the handling of small routine matters. Cravath believed that a man who learns to analyze the component parts of a large problem involving complicated facts, and to do each detailed part well, becomes a better lawyer faster than the man who is not taught in such detail.
As the professional competencies of associates grew, their level of responsibility increased. Ideally, these competencies included the ability to effectively delegate, supervise, and train other lawyers. Swaine observed, "The art of delegation in the practice of the law is difficult, requiring the nicety of balance which many men with fine minds and excellent judgment are unable to attain. ... The more nearly he attains the right compromise between [doing all the work himself or turning everything over to an assistant], the greater the amount of effective work a man can turn out, and hence the greater his value to the firm."
Obviously, the Cravath system as conceived by Paul Cravath
envisioned a process that spanned several years. Therefore, "[m]en who
are willing to stay only a year or two are not desired, for the
'Cravath system' cannot train a main in that short time. They are
expected to remain as long, but only as long, as they are growing in
responsibility." In today's high attrition environment, this temporal
component has been completely disrupted at most firms.
Another tenet of the Cravath system was up-or-out after six to ten years, primarily because a "man who is not growing professionally creates a barrier to the progress of younger men within the organization ... . It is much better for the man, for the office and for the clients that he leave while he still has self-confidence and determination to advance. The frustrated man will not be happy, and the unhappy man will not do a good job."
The genius of the Cravath system was the interlocking incentives that made the model sustainable: every person involved in the process--associates, partners, clients-was made better off. In the case of associates who were not destine for partnership, Swaine reported:
The firm constantly has requests from clients and other leading industrial and financial organizations to supply men for legal and executive positions. Other high-ranking law firms of the City and elsewhere have taken Cravath men as partners; many Cravath men have formed successful firms on their own [many of which are now Am Law 100 firms]; and quite a number have become members of law faculties. It is often difficult to keep the best men long enough to determine whether they shall be made partners, for Cravath-trained men are always in demand, usually at premium salaries.
Almost without exception, the relations between the Cravath partners and the men who have left the office to compete professionally have remained friendly, and often intimate. Cravath partners take great pride in the success of alumni. ... [N]ew business if often referred to former associates.
One such Cravath alumni was Charles Reich, a Yale law professor who gained fame for the influential book, The Greening of America (1971). One of Reich's close friends recently took at job at Cravath, Swaine & Moore, and Reich used the occasion to reminiscence on this own experiences. It a letter to his friends daughter, which was subsequently published in The American Lawyer in December 2007, Reich's relates impressions strikingly similar to Swaine's account:
In the Cravath of 1952, I felt no pressure whatever concerning billable hours. ... The only pressure was to complete an assignment on time. ... We were all told that while few associates could expect to remain permanently at the firm itself, we could all count on well-paid future employment at one of the many corporate legal offices or regional law firms that had ongoing relationships with Cravath. The message was: Excellent work is expected, but the pressure is off. Associates were safely and comfortably on the inside for life. Inclusion was more important than competition.
In the terrific book Lions of the Street
(1973), journalist Paul Hoffman quoted another former Cravath
associate, who observed, "The [Cravath] fraternity takes care of its
own. ... Nobody starves." Going to work for Cravath and following the
program guaranteed a certain minimum level of professional success.
And that minimum was, in the bigger picture, pretty darn high.
Further, with some luck, you could become partner at Wall Street's most
Interlocking Incentives for Partners
It is noteworthy that the Cravath system reflected a business philosophy that encompassed the entire firm, including the partnership. According to Swaine, "Probably the most rigid feature of the 'Cravath system' has been insistence that for every man in the office, from the senior partner to the neophyte law clerk, the practice of law much be the primary interest and that that practice shall be solely as a member of the Cravath team." Associates and partners were trained in the tradition that:
All the business in the office much be firm business. ... The problem of the firm is to do effectively the business that comes to it; by so doing that business, more comes in. Hence, business-getting ability is not a factor in the advancement of a man within the office at any level, except in so far as that ability arises out of competence in doing law work ... .
Every partner is expected to cooperate with every other in the firm's business, through whichever partner originating, and to contribute to all the work of the firm to the maximum of his ability. The formation among the partners of cliques practicing independently of each other, which developed under Gurthrie [a partner who left the firm in 1906], would not be allowed today.
To maintain this interlocking system of incentives toward high quality work product, Cravath very rarely hired lateral partners or associates. Thus, "Young partners and young associates are seldom subjected to the discouragement of seeing someone come in over them from the outside." [A Cravath tenet broken by most law firms today.] Swaine also claimed that the firm discouraged work habits that crushed interests outside the law. "Cravath wanted his partners and associates to have such interests, and believed that the few who allowed office work to pre-empt all their energies where harming themselves and the firm."
The Cravath firm history has a interesting passage on the the firm compensation system. Today, Cravath Swaine & Moore is often cited as one of the few remaining examples of lockstep compensation, in which a partner's profit share is a function of years with the firm. See, e.g., Paul C. Saunders, When Compensation Creates Culture, 19 Geo. J. Leg. Ethics 295, 296-97 (2006) (partner at Cravath Swaine and Moore discussing deleterious effects of eat-what-you-kill compensation system and noting "[m]y firm's model for partner compensation is, and has been for a very long time, completely based on the lockstep approach."). Yet, the passage excerpted below suggests, at best, a modified lockstep approach:
Attainment of partnership does not mark either the limit of potential growth or accession to any automatic hierarchy. The younger partner who evidences capacity to win the confidence of clients with whom he or she works so that they continue with the firm, or impresses others who come into contact with his work so that other business comes to the firm through him, and who takes responsibility for a number of varied matters, at the same time supervising the work of members of the staff and sometimes of other partners, may well raise, and indeed often has risen, with the firm more rapidly than his seniors. The partners are judged inter se just as are the associates, and adjustments are made to reflect the evaluation of the young partners by their seniors.
My co-author, Marc Galanter, tells a story--possibly apocryphal--that the Cravath partners approached Paul Cravath about the possibility of moving to a pure seniority-based compensation system. Cravath stated that he had no objection to the proposed plan, "as long as I get my half." I have no idea if this story is true, but it is (a) amusing and (b) consistent with idea that rules required to build a franchise may be very different than those required to maintain it. Certainly, the lockstep system may be the best way to preserve a cooperative ethos at a firm that has earned the top position in the market.
One objection of my above characterization of the Cravath system is that I have been too willing to accept, at face value, the words of Robert Swaine and Paul Cravath--that these lawyers are spinning the history to show themselves in their desired light. I understand the criticism but I think it is premature and possibly misguided. The best way to ascertain the reliability of Swaine's historical account is to examine the various pieces of the Cravath system and ask ourselves if it holds together as a theoretically coherent model. I think it does. Occasionally an accurate historical account is going to be the most flattering.
In a future post, I will discuss how the logic of the Cravath system mirrors the findings of the famous Bell Labs study, which documented that organizational productivity was a function of teachable work strategies rather than the credentials or innate abilities of individual engineers. Further, under the Bell Labs system, women and minority engineers tended to post the largest gains--a finding that should give the legal profession pause. See Results or Résumés.
July 22, 2008
New Blog From a Hiring Partner Offers Great Tips From the Inside
Posted by Alan Childress
Enter the blogger named Hiring Partner. The semi-mysterious guy (or is he a guy? -- actually seems like a composite, to me, of a hiring partner and the firm's recruitment coordinator, but I don't mind) started to blog Friday, at Hiring Partner's Office, and it is already interesting. He sits at the other side of the summer associates' (and later 2L interviewees') worldview. "I am the hiring partner at an office of an AM LAW 200 law firm. I oversee on campus recruiting at targeted law schools for our office and local candidates for other firm offices. I also manage our summer associate program." He is the decider.
Why blog? Mainly it's "the millenials (sp?). I keep hearing it is a generational thing. I thought it would be useful to have a blog where law students and others can learn about things that -- despite their great grades and stellar pedigrees -- can nevertheless disrupt your getting an offer at the firm of your choice. You would be amazed at some of the things that have been occurring."
On the 'amazed' front, consider his top ten things that annoy your hiring partner, compiled after a poll of hiring partner friends. (I had no idea they formed a clique.) For example, advice at a social function held at some partner's house:
Be charming and pleasant. Be respectful. DO NOT take off your flip flops (btw, don't wear flip flops!) and put your bare feet on the partner's couch/chair, etc -- YES, I saw this one happen myself. YOU ARE NOT AT HOME.
And a later post asks summer associates to assess where they are, substantively, not just socially. Finish strong.
July 18, 2008
How the "Cravath System" Created the Bi-Modal Distribution
[posted by Bill Henderson, crossposted to ELS Blog]
The bi-modal distribution (graphic to the right, originally posted at ELS) continues to generate interest in the blogosphere. See, e.g., Greg Mankiw, Right Coast, Broken Symmetry. The chart summarizes the starting salaries for lawyers who graduated from law school in 2006. One reason the bi-modal structure is so jarring is that it demonstrates that measures of central tendency, such as average or median, are not necessarily reliable guides for law students' future earning power. In conventional labor markets, that disconnect is rare.
NALP recently dug into its archives to determine whether this stratification is a persistent feature of the entry level law market. See NALP Bulletin (Jan. 2008). It turns out that 15 years ago, the market followed a much more traditional distribution. The chart below summarizes the salaries for the class of 1991.
The 1991 graph is right skewed but bears some resemblance to a normal curve. Below is the graph for 1996:
The rightward skew is a bit more pronounced and the area under the $75K to $85K range is becoming more substantial. A more seismic shift is seen in 2000 (below) with the emergence of a second mode at the $125K price point.
At the height of the Internet boom, a remarkable 14% of all entry
level lawyers took jobs at the $125K level. According to NALP, "never
before had a single salary so dominated the landscape." Under the 2006
bimodal distribution (see chart above),
44% of graduates received entry-level salaries in the $40K to $60K
range; yet, the second mode moved further to the right ($135K to $145K) and
grew to 17% of all graduates.
What are the market forces that have created this peculiar salary structure? In my working paper, "Are We Selling Results or Résumés?: The Underexplored Linkage Between Human Resource Systems and Firm-Specific Capital,"
I posit that the runaway $160K mode is a confluence of two factors:
(1) the continued growth in the corporate legal services market,
primarily due to the growing scale and scope of transnational corporate
activity; and (2) law firms' nearly universal adherence to the "Cravath system,"
which purports to hire the best graduates from the best law schools and
provide them with the best training. More after the jump. ...
What are the market forces that have created this peculiar salary structure? In my working paper, "Are We Selling Results or Résumés?: The Underexplored Linkage Between Human Resource Systems and Firm-Specific Capital," I posit that the runaway $160K mode is a confluence of two factors: (1) the continued growth in the corporate legal services market, primarily due to the growing scale and scope of transnational corporate activity; and (2) law firms' nearly universal adherence to the "Cravath system," which purports to hire the best graduates from the best law schools and provide them with the best training. More after the jump. ...
The New York firm of Cravath Swaine & Moore created and refined this system during the early 20th century. The emphasis on educational credentials was initially an attempt to establish a distinctive brand of legal services that could differentiate the firm from other Wall Street competitors. Now, ironically, it has become a uniform industry practice utilized by every large law firm that claims to provide first-rate services. [Virtually all firms mimic the Cravath system without understanding its logic. In the paper, I draw upon a unique study of engineers at the renown Bell Labs to suggest that Cravath's superior client service has less to do with credentials than an organizational structure and ethos that aligns the interests of associates, partners, and clients. Paul Cravath's theory is laid out in Robert Swaine's history of the firm. I will discuss his profound disconnect in a subsequent post.]
On one level, law firms' reluctance to tinker with the Cravath
system makes perfect sense--it has produced large incomes and huge
profits margins for decades. Further, 30 or 40 years ago, the vast
majority of firms that would eventually become the Am Law 200 were, in
fact, "white shoe" firms within an overwhelmingly regional corporate
legal market. In particular, places like Cleveland, Detroit,
and St. Louis garnered their share of elite law school graduates. In
the early 1960s, sociologist Jack Ladinsky found that 73%
of Detroit lawyers working in law firms (i.e., not in solo practice)
went to one of five national schools: Harvard, Yale, Columbia,
or University of Michigan. See Ladinsky, Careers of Lawyers, Law Practice, and Legal Institutions, 28 Am. Sociology Rev. 47, 49 (1963). You can bet this pattern is radically different today.
As these regional law firms morphed into the Am Law 200, their partners remained psychologically wedded to their own perceptions of eliteness. In the ensuing salary wars, these firms slavishly paid the prevailing rate rather than signaling to the market that the firm had become "second rate" (a term used by a Proskauer Rose partner in rationalizing the higher pay). In turn, the laws of supply and demand produced the bi-modal distribution.
The Results or Résumés paper draws upon two pieces of market data to demonstrate that a large proportion of large corporate law firms have to re-evaluate their business models: (1) stunning uniformity of associate entry level salaries amidst large, growing disparities in profits per partner; and (2) evidence that firms are becoming stratified by premium versus non-premium practice areas.
Regarding the disconnect between associate and partner pay, the
bar chart below compares associate starting salaries with profits per
equity partner at the 25th, 50th, 75th, and 95th percentile breakpoints in
the Am Law 200.
As the paper documents, over the last several years, profits are going up at all levels of the Am Law 200; they are just going up much faster for high PPP firms. Obviously, when firms at the top of the heap (95th percentile) pay higher salaries and bonuses, it is quite a stretch for firms at the 25th percentile to match. The money has to come from somewhere. If it comes out of the draw of a rainmaking partner, he or she has a strong incentive to seek greener pastures. That is risky; but to the majority of the partnership, departing from the Cravath model seems equally perilous. Over the last decade, virtually all large firms have adapted by increasing leverage (i.e., the ratio of total lawyers to equity partners). But higher leverage can also undercut associate morale and loyalty. So for firms at the bottom of the PPP distribution, the salary wars are one hell of a vise, particularly as the economy heads south and they are stuck with a $160,000+ cost structure.
Yet, for many firms, there is second trend that is much more
troubling. Based on a
dataset of lateral partner mobility within the Am Law 2000, it is
possible to tease out a relative hierarchy of practice areas. The
table below, which covers the 2000 to 2005 time period, orders legal
specialty by differential profits per equity partner (PPP) between the
a partner left and the firm he or she joined.
The trends are straightforward. Partners in marquee practices like white collar crime, securities enforcement, M&A, private equity, emerging markets, and intellectual property litigation are disproportionately moving upstream to more profitable firms. Partners specializing in regulatory compliance, real estate, public finance, project finance, and trust & estates are disproportionately moving downstream. A similar analysis using multivariate regression, which controlled for year and city, found that labor & employment was also associated with downward (i.e., lower PPP) movement. (See regression table.)
In the long-run, firms without a optimal mix of premium practice
areas will have a hard time sticking with the Cravath
system. Increasingly, corporate clients are refusing to have their
cases staffed by expensive first- or second-year associates who don't
know very much and tend to leave. Hence, the training the clients are
allegedly paying for has little or no future payoff.
In other words, for many large law firms, the wheels of their hallowed business model are falling off. During this period of denial, every firm's short term strategy is to work harder, promote fewer lawyers to equity partner, and de-equitize as needed. Marc Galanter and I chronicle the unremitting nature of modern large firm practice in our forthcoming Elastic Tournament article. If you have any doubt about the inevitability of change, read this seminal speech by Cisco GC Mark Chandler.
Fortunately, the Results or Résumés paper lays out a solution for any law firm willing to try something new. The psychological barriers, however, are much larger than the logistical or financial. I will blog on this topic in a subsequent post.
July 04, 2008
Follow Up to Career Advice - In-House Prospects
Orin Kerr graciously linked from the Volokh Conspiracy over here to the litigation versus corporate career post. I want to return the favor by linking back to a set of comments being posted over there. The same over at Above the Law. There are a number of thoughtful comments out there.
One of the themes being discussed is whether it's easier to move in-house if you've been a transactional lawyer or a litigator in-house. I don't have any idea what the data is on this, but my philosophy as a general counsel, unless I was hiring for a specific specialty, like a litigation supervisor, an HR lawyer, or a patent lawyer, was to look for the best available athlete, and I had a track record of hiring both transactional and litigation lawyers to be divisional or business group GCs.
Many leading GCs are or were former litigators, including Jeff Kindler, first at McDonald's and then Pfizer (and now CEO of Pfizer), Peter Kreindler at Honeywell, Don Kempf at Morgan Stanley, Paul McGrath at FMC Corp. and then American Standard, and the list could go on and on. John Donofrio, the GC at Visteon, and Bob Armitage, the GC at Eli Lilly, are patent lawyers by background.
I think many of the comments reflect something I suggested before, which is how hard it is at the bottom of the heap to experience what it's like to be a senior lawyer in either specialty. For example, the communication skills you learn as a litigator translate nicely into talking publicly to a board or in a negotiation. A congenial personality works well in front of a jury as well as in a boardroom (the six or twelve lay people in either environment tend not to like assholes any more than anybody else). One of my mentors at Dykema, now retired, Don Young (Harvard '63 I think) had a fearsome reputation both internally and externally (as a summer associate I drew a cartoon of an associate who looked like he had just put his finger in an electric socket; the caption had him saying to another lawyer, "Don Young just reviewed my research memo"), but in front of a jury he was the embodiment of Mr. Charm. Fortunately, despite the fearsome reputation, he also had a sense of humor and an appreciation for chutzpah in young lawyers, much less summer associates who had yet to get an offer!
July 01, 2008
Litigation or Transactional Law Career: Some Advice to Law Students
Posted by Jeff Lipshaw
A reader who is interning in a NYC corporate law firm, and about to enter law school, saw my earlier post alluding to the creative possibilities in transactional work, and sought advice about choosing between transactional work and litigation work. I'm happy to share some thoughts.
1. Mostly I will be talking about big firm practice, but I should issue a disclaimer. There's big firm practice, and there's mega-firm practice. The reason it's important to make the distinction is because I'm looking backwards at a career in which many of the fulfilling aspects came later, after I did my time in the trenches (both in litigation and corporate). So there is a substantial period of learning how to chop the wood before a new lawyer gets to build, much less design, the house. My perception is that period is shorter in big firms outside of the financial centers. You will probably take on more responsibility more quickly at a big firm in Detroit than Chicago, in St. Louis than Los Angeles, in Salt Lake City than New York. [UPDATE: See comment below on how this differs between transactional and litigation.]
2. Law school, at least the way it's mostly taught, does not tell you much about the way the transactional practice works. That's because of the case method. Cases are always about litigation. (Interestingly, business schools teach transactions in the case method, but they are cases in doing business, rather than litigating about it.) Even contracts class, as usually taught, is something of a bait-and-switch. Don't blow it off, because you'll need it for the bar exam, but there's not a lot of contract law that comes to the fore in transactional practice. I often say, and am probably not far off, that the practice of contracts is 90% interpretation, and 10% all other (offer and acceptance, consideration, duress, mistake), and the teaching of contracts is 90% all other, and 10% interpretation. Litigation tends to involve the LAW a lot more. The number of occasions for going to the library and doing extensive research on a legal issue is far greater in litigation, and when you do research an issue on the transactional side, it rarely turns into work product in the way a brief springs out of the cases. You might do corporate research, for example, on whether a transaction involves substantially all of the assets of a corporation, and hence require shareholder approval, but that will tell you how to structure the deal, not be the basis for an argument.
3. Are you a win-lose kind of person or a win-win kind of person? Great trial lawyers are sublimated warriors. Winning a trial or decimating a witness in cross-examination is the thrill of conquest and vanquishing. If you are not that kind of person, it can wear on you. Personally, I realized ten years into a litigation career, (a) I wanted to be liked (if not loved) too much to be a conqueror, (b) dealing with the opponents' conception of the truth (opening up the other side's brief and reading it, for example) was frustrating and hard on my blood pressure, and (c) as I discuss below, once you get beyond the adrenaline rush that causes your eyeballs to pop out of your head (some people like that), the way trials work in cases that big firms do can be kind of . . . boring.
On the flip side, negotiating transactions is also "adversarial" in a way, and a lot of it is about winning points. Just like a litigator can't win without good facts and good witnesses, a transactional lawyer can't make points without exogenous business leverage. For example, even in a "friendly" business combination involving public companies, there are a series of points negotiated between the acquirer and the target that have to do with how tied up the deal is. The task for the sellers is to maintain some wiggle room for future leverage, and the task for buyers is to make it as difficult as possible for the target's board of directors, short of violating their fiduciary duties, to get out of the deal if a better one comes along. But that's all less a matter of the lawyer's skill than the leverage the client has or lacks. (See the Bear Stearns - J.P. Morgan deal for an example of this.)
The bane of a transactional lawyer's existence, though, is an adversary who seems more intent on winning "lawyer points" than getting the deal done. One aspect of creativity in deal lawyering, it seems to me, is knowing when to hold 'em and when to fold 'em - how to concede the points you don't need, or trade them for the ones you do. Negotiating with a lawyer who, like a litigator, needs to conquer or vanquish, is tiresome.
One of my late ex-colleagues and dear friends told me that he found the give-and-take of negotiated deals tiresome in just that way, and that's why he "stuck to raising money in the public capital markets."
4. The first part of a career, whether in litigation or corporate, is a combination of doing the grunt work and learning professional techniques. Doing the grunt work, well, sucks. Learning the professional techniques, whether it's second-chairing a deposition, or attending the negotiation of the acquisition agreement, is a lot of fun, as long as you like to learn. Being creative with those techniques is something that comes later. Two examples. Litigation. An old saw of cross-examination is that you never ask a question for which you don't know the answer. That pretty much guarantees that you won't make a mistake. But great cross-examiners violate that rule all the time, because they know what questions to ask in which they either don't care what the answer is, or have a plan for whatever comes out. Corporate. Things like the shareholders' rights plan (the poison pill) are invented by creative lawyers. But generally that's by lawyers with cycles of learning in the transactions.
Moreover, technique in itself can get old. It's the context then that supplies the interest. I'll give two non-legal professional examples. When my daughter was born 24 years ago, I was (obviously) blown away by the experience. I said something to the OB about how thrilling it must be to deliver new babies. He said the physical aspect of it lost its wonder after a while, and the thrill came from dealing with the parents. Or to take a counter example, dentistry. I don't know how much professional satisfaction comes from doing fillings and crowns once you've mastered the technique. I do understand dentists have high suicide rates, compared to other professions, for whatever reasons.
Similarly, mere technique in high-powered litigation or corporate work can get old. As I've said, I didn't like litigation. We had a ten week trial in Cheyenne, Wyoming in 1986, litigating a whole set of complex contractual issues between a coal supplier and a utility. In the midst of what ought to be the most exciting time for a corporate litigator, I realized I was bored. I knew what every already deposed witness was going to say, and what the cross-examination would be. In corporate work, it got to the point that I negotiated the key business points of the deal, but was bored stiff by the lawyers' wrangling over the environmental representation or the interstices of the definition of the "knowledge" standard for representations that hinged on it.
5. (UPDATED) Get good mentoring on this. I don't take anything away from law professors (I am one, after all), but note that the experience (as opposed to mere knowledge or analysis) of mature practice occurs well after most professors have left practice to go into the academy. Indeed, at the 2-4 year level, which is pretty common, you are still moving from grunt work to learning technique. Obviously, thoughtful professors will have observed what senior lawyers do, and can be intelligent and insightful, but they haven't necessarily experienced what it's like to be a senior lawyer in practice. Many of those senior lawyers - corporate and litigation - have real passion for their jobs, and it pays to listen to them talk about why. Or talk to adjunct professors. One of my most rewarding classes was a mock litigation course taught by Charles Marson, who had been the Executive Director of the northern California ACLU.
As with many decisions in life, there's no silver bullet, or algorithm, or pat answer. You just pays your money and takes your chances!
February 12, 2008
Young Lawyers: What Do You Want to Be When You Grow Up? (And Can You Repay the Loans?)
Posted by Jeff Lipshaw
I have, in the past, expressed some disdain toward the victimology advocated in some quarters over the plight of very highly paid young Big Law lawyers. The only thing yet that has given me pause to reconsider the fervency of that belief is the troubling and puzzling issue why one would incur up to $100,000 in student loan debt without at least some shot at one of those pricey jobs that would provide the basis for repaying the loan. Nevertheless, my sense is that the Golden (or at least Silver or Bronze) Handcuffs might well be as effective as the debt in tying one to an unsatisfying career in Big Law, but that's merely reflecting my own experience. The bigger concern is what happens to people who don't get those kinds of jobs, but incur that kind of debt.
Notwithstanding the economic pressures from whatever source, I think we have to acknowledge, however, some personal accountability for what we want to be when we grow up. On that score, the February 2008 edition of the ABA Journal, freshly delivered to the mailboxes here in Suite 250, has an interesting pair of juxtaposed articles. One is an excerpt from Making Waves and Riding the Currents, the memoir of Charles Halpern (left), who left the relative security of Arnold & Porter in the 60s to found the Center for Law and Social Policy, and later became the first dean of the CUNY School of Law. The excerpt describes his decision to leave Arnold & Porter and its lifestyle (although, notably, the question of being saddled with debt does not come up). The other is a description of a week in the life of Stephen Susman (right), the founder partner of Houston's Susman, Godfrey, and a big-time Big Law lawyer (albeit an entrepreneurial one), replete with early morning personal training and dog walking in Central Park, breakfasts with George Soros, benefits, fancy lunches and dinners at posh NYC restaurants, conference calls, and prep sessions for pending hearings in which he will be up against David Boies.
Do these stories reflect the polar extremes of what we want to be when we grow up? Is the idea of personal autonomy and accountability - that either career is achievable - a myth that collapses in the face of the present economic reality facing most of today's law students?
February 07, 2008
For Lincoln's Birthday Next Tuesday: Kentucky's Lincoln and Brandeis Speak to Young Lawyers
Posted by Alan Childress
Everyone knows Abe Lincoln was born in Kentucky, but I had forgotten that Louis Brandeis was born there too. Here is a great old post from Kentucky lawyer-blogger Ben Cowgill, 'interviewing' them both about their advice to those entering the legal profession. It is nicely footnoted and thoughtful. It is called Old Wisdom for New Lawyers. One useful exchange:
Cowgill: But I seem to recall that you refused to take vacations as a young lawyer. Did you have a change of heart?
Brandeis: I soon learned that I could do twelve months' work in eleven months, but not in twelve.
November 22, 2007
Looking for Meaning in Cambridge on Thanksgiving Morning
Posted by Jeff Lipshaw
I wondered this Thanksgiving morning whether there is a blog where the pharmacists who staff the 24 hour CVS in Porter Square (where I filled a prescription), or the baristas who open the Mass. Ave. Starbucks at 6:00 a.m. (where I got some coffee), or the people who work at Kohl's and will be at their stations at 4:30 a.m. tomorrow morning, or the people who drive the T trains all day on the holidays can bitch and moan about their lot in life. I happened to be reading Paul Gowder's blog post over at Law and Letters about the travails of being an exploited young lawyer, and thought I'd note a couple things.
1. The "corporate serf" thing or the big firm/do-gooder dichotomy for graduates of the elite schools is just plain wrong. Thirty years ago, I made a life style decision NOT to go to work at a law firm in New York, opting instead for less money and more lifestyle in Detroit. That option still exists.
2. With all the ink spilled about the likely fate of the vast majority of law students, why do they keep going to law school? Maybe the ones who don't see themselves as victims just don't write about it.
3. There's an article in the New York Times this morning about the perks that the big law firms offer to their associates in the competitive market for talent. The list that follows is taken verbatim from the article: candied apples on everyone's desk from the "happiness committee," milkshakes from Potbelly Sandwich Works, concierge services (pick up theater and sports tickets, dry cleaning, car repair, etc.), top off bonuses, sabbaticals, mortgage guarantees, subsidies for buying hybrid cars, on-site tailoring, personal issues coach and psychotherapists, wine parties (tuna tartare, baby lamb chops), dinner delivered from the Palm Restaurant (on a silver tray), yoga classes, nap rooms, child care, and emergency nanny services.
I return to my thoughts from yesterday about futility. Very few people in the world are lucky enough to find meaning for their lives in their work. If you are looking for meaning in your life, and doing your job as a lawyer has as much meaning to you as filling an order for a quad soy latte with extra foam, then you either have to look for meaning elsewhere, or deal with the same cognitive gap of futility in squeezing meaning out of something that is not meaningful. But lawyers at least have a chance.
When my daughter was born over twenty-three years ago, as we were still basking in the miracle of having created this baby, I remarked to the obstetrician in Ann Arbor (who was about to leave for a post-doc at Duke) how amazing it must be to see babies born every day. His response was interesting. He said that the physical act of giving birth had, to him, become routine; the magic and the meaning was in the connection with the people who were his patients.
Practicing law probably falls somewhere between making espressos and delivering babies, but the point is that there's no guarantee that work will make our lives seem important to us, and we need to deal with that either by changing the work or finding another place for meaning.
June 15, 2007
You Be The Judge
Here's a test of your attitude towards lawyer sanction. How would you evaluate the following charges in a complaint recently filed by the Illinois ARDC? In the wake of his termination as an associate of a law firm in Elgin, Illinois, the attorney is alleged to have made a series of unauthorized purchases on the firm credit card. Among the purchases - several pieces of artwork ("Ete Hiver Chamonix Mont-Blanc" and others), a lady of justice statue, and a "medium black hipster coat." Total: roughly $1200, mostly at Target. The attorney was charged criminally but diverted to a Second Chance Program which required restitution. The charges are deferred pending completion of the program.
Count two involves an argument with the partner who fired him and the handling of his last paycheck. The attorney left a text mesage for the partner as follows: "We're now settled. Otherwise, I'll tie you up in Court on fraud & malpractice charges & report you to the ARDC. Your S-Corp. is dissolved...dumbass!" The charge: threatening to present professional disciplinary actions to obtain an advantage in a civil matter in violation of Illinois Rule 1.2(e). Note that there is no such rule in the ABA Model Rules.
How would you decide this one? What factors would influence your decision as to misconduct and sanction? (Mike Frisch)
April 25, 2007
The "Do We Need to Know..." Trilogy: Part 2 - The Little Judgment Calls Real Lawyers Make Right from the Start
Another one of my evasions to the "do we need to know..." question (besides saying that students should think of the law as Jewish scholars thought of the Talmud - a sea across which we could never swim) is to recall the first time I had to write a research memo for a partner in a law firm as a summer associate. As is often the case with summer associate research assignments, the issue was particularly arcane and fact specific. The partner didn't give me a page or word limit. He didn't say "just restrict your research to the Michigan digests." He didn't say how long I should spend on it. All he gave me was the assignment and a due date.
The fact is that he didn't know the answer, which is why I got the assignment. Any question akin to a pre-test "do we need to know?" (like "do I need to look at?" or "how long should I spend?") would have provoked different and perhaps unpleasant responses, depending on the lawyer (caveat to the "how long" question - you might get a response that says if you haven't anything in X hours of research time, come back to me). While the more senior lawyers in the litigation or in the transaction make the BIG judgment calls, young lawyers start making little judgment calls right off the bat. "I am the only person researching this issue, and only I know if I have looked hard enough for the answer. Only I know if I have gone past the time of diminishing returns in the research. Only I know if it's time to stop researching and time to start writing. Only I know if I need to know anything else to answer the question."
April 09, 2007
Richmond on Ethical Duties of Law Firm Associates
Posted by Alan Childress
Douglas Richmond (Sr. VP of the insurer Aon Risk Services-Professional Services Group) has posted to SSRN the article, "Professional Responsibilities of Law Firm Associates." It is also in Brandeis Law Journal, vol. 45, p. 199, 2007. Here is his abstract:
Most American lawyers practice in law firms. Although firms are variously structured, the lawyers who practice in them can generally be divided between partners and associates. While associates and partners share professional duties and problems, in several key respects associates' professional responsibility concerns and problems differ significantly from partners'. This article has its genesis in those differences and the common perception that associates are increasingly pressured to act unethically.
The article begins by examining law firm culture because it is culture more than ethics rules or other professional standards that influences associates' behavior. The article then discusses associates in the professional responsibility framework, focusing on Model Rule 5.2 and section 12 of the Restatement (Third) of the Law Governing Lawyers, before examining professsional responsibility subjects of special importance to associates: the duties of competence, diligence, and confidentiality; overbilling; ethics issues associated with legal writing, including the duty of candor to the tribunal, plagiarism, and the duty to diclose directly adverse authority in the controlling jurisdiction; the duty to report serious misconduct by other lawyers, focusing on difficulties associated with reporting misconduct by partners; and associates' duty of loyalty to their firms.
The article concludes with a call for further research into associates' professional responsibility problems by groups positioned to conduct empirical studies of the subject, such as the ABA or NALP.
March 05, 2007
Son of Even More Than You Ever Wanted to Know About Lawyer Unhappiness Returns - The Sequel, Part IV
Building on my earlier empirical work on associate satisfaction, law firm culture, and billable hour expectations, I designed a national cross-profession study of lawyers practicing in firms, corporations, and government offices. The study obtained qualitative and quantitative information using two questionnaires: one designed for managing attorneys and one designed for supervised attorneys. We also conducted focus groups in five cities around the country.
Close to 50% of supervised attorneys agreed with the statement, "I feel stressed and fatigued most of the time." 63% of supervised law firm supervised respondents agreed that they are forced to sacrifice fulfillment outside work in order to advance their careers. Nearly half of the supervised attorneys in law firms and supervised attorneys in corporate offices reported that they were interested in exchanging lower compenation for working fewer hours.
I discuss these findings and others in a NALP Foundation book called, IN PURSUIT OF ATTORNEY WORK-LIFE BALANCE: BEST PRACTICES IN MANAGEMENT. I would be happy to send interested people a short article published in the NALP BULLETIN. I also discuss select findings in a Fordham symposium article called, The Billable Hours Derby: Empirical Data on the Problems and Pressure Points, 33 FORDHAM URB. L.J. 171 (2005).
I don't know how that compares to other professions (dentists, medical residents, inner-city school teachers), or to managing lawyers, but it's certainly another set of data points, and confirms that this is hard work that generally pays a pretty good wage. Whether I felt stressed and fatigued would have depended on what day you caught me (at any level). Fifty-fifty sounds about right. I would also have answered that I sacrificed fulfillment outside work every day of a twenty-six years career in the practice - as associate, partner, of counsel, and general counsel. Almost every second of certain points of my life was devoted either to work or to the needs of my children, and it was only as they grew up and pursued their own interests that I returned to many things that fulfill me: golf - at a handicap less than 20; art, such as I produce it; writing; teaching (first as an adjunct), etc. Even now, I have a hard time giving up writing (blog, article, book review or otherwise) to go play the little Audubon Park course, and I still haven't managed to regrout the mosaic that has been sitting in my apartment since August. You can take the boy out of the Type A environment, but you can't take the Type A out of the boy.
March 01, 2007
More on Lawyer Happiness (or the Lack Thereof)
John Steele over at Legal Ethics Forum has touched off a very interesting dialogue on the subject of lawyer happiness and unhappiness, and the scholarship of it. Both John's observations and the comments of other really first-rate thinkers (including John) on ethics are recommended.
John credits the book we have both reviewed as "cultural criticism in the mode of Roland Barthes." I would also (and did) give it credit as one instance of anthropological or cultural narrative, but, in fact, the author and its publisher market the book as something more: "empirical" and as involving "painstaking analysis." I suppose in the very broadest sense that might be true, but I leave that to the reader. I have said about as much as I want about it.
John also referred to an article by Patrick Schiltz published in the Vanderbilt Law Review back in 1999. My reaction to the Schiltz article was about like Brad Wendel's in the comments over at LEF: there was certainly more beef and balance to it. And it stressed personal choice and accountability as a normative recommendation. Plus, Schiltz had the benefit of a relatively extended stay in a big firm. But Schiltz had his own bouts with hyperbole - I thought the description of the cocktail party was pretty funny, but it IS hyperbole, and having hors d'oeuvres at a partner's house isn't unethical, which is what it seemed to suggest it helped lead to. (A couple shrimp wrapped in bacon, and the next thing you know you are a heroin addict!) I used to go to a party like that just about every Christmas hosted by the head of the litigation group. He and his wife are still married after forty years or so. And while he was a fearsome litigator, he was one of the most honorable people I ever met. (He did like his Dewar's, on the rocks and with a twist.) Only to say, as law professor-anthropologist John Conley does, you have to be careful what you infer from this kind of data.
And Schiltz's intro on depression and lawyers is highly suspect. As my wife, an MPH, advised this morning, there's no way you can tell (as Schiltz admits, but only fleetingly) whether depression-inclined people self-select to be lawyers, or being a lawyer causes or exacerbates depression. Given depression's biochemical etiology, I'd be inclined to think the seeds are there to begin with, but we may never know.
Finally, Bill Henderson (Indiana) of "Young Associates in Trouble" and Empirical Legal Studies passed on the following
references. The Harvard Law Bulletin has an article in the fall 2006 issue on the "After the JD" study being undertaken by David Wilkins (Harvard, right) and the HLS Center on Lawyers and the Professional Services Industry. This is a ten year longitudinal study tracking nearly 4,000 new lawyers. Says the Bulletin: "Job satisfaction is one aspect of the responses that Wilkins finds most interesting. According to the study, and contrary to what most believe, there is 'no evidence' of 'any pervasive unhappiness in the profession,' he says - at least not among those who began practicing in 2000." Bill also suggested John P. Heinz, Kathleen E. Hull, and Ava H. Harter, "Lawyers and their Discontents: Findings from a Survey of the Chicago Bar," 74 Indiana Law Journal 735 (1999), which found that lawyers were no unhappier than any other profession or job.
Again, all of this to say that we need to be very careful, particularly as law professors, in describing the world as we think it is, and in figuring out how our view of the "ought" affects it, if that is at all possible.
February 28, 2007
Conley on Racial Equity in Private Firms
Posted by Jeff Lipshaw
One of the wonderfully rewarding aspects about jumping into academia after so long in the practice is to realize that part of the job description of professional teacher is (or should be) to be a professional learner. (That we are professional learners even in business was part of my management philosophy, so perhaps that says something, but I don't know quite what.)
That's an introduction to my recommendation of a tremendously interesting article, methodologically and substantively, by John Conley (North Carolina, left), who I featured in a post yesterday. The article is "Tales of Diversity: What Lawyers Say About Racial Equity in Private Firms," 31 Law & Social Inquiry 831 (2006). Professor Conley is an anthropologist and law professor, so the first part of the paper is an explanation of the scholarly discipline of ethnographic narrative - what you can learn and just how much you can generalize from what people say about their culture - in this case, lawyers about their jobs and their firms. The second part is a report on what lawyers in different kinds of firms actually say about racial diversity. The abstract follows below the fold, but as Larry Solum would say: download it while it's hot!
Here is the abstract:
This paper reports on what a narrative study of the legal profession has revealed about diversity in private law firms. Since 1995 I have taught a course about the legal profession that revolves around interviews with lawyers representing the breadth of the legal profession. Over nine iterations, I have completed over 100 such interviews. They have yielded narratives on such topics as how various kinds of practice groups work, how legal careers evolve, how lawyers' professional and personal lives interact, how lawyers feel about their profession, and what they believe are their most difficult moral and ethical challenges. The topic of diversity in various practice settings has also figured prominently in most of the interviews. All of the lawyers interviewed have expressed enthusiasm for diversity as a value to be pursued. However, almost without exception, private-firm lawyers have admitted that their respective organizations have made unsatisfactory progress. When asked to analyze their firm's performance, most provide explanations that do not augur well for the diversification of the private bar in the near future. Their narratives implicate as causal factors the history of individual firms, the nature of intimate business associations, the profession's dominant hiring and promotion models, and, in most cases, the absence of external pressures to diversify