ON BEING A HAPPY, HEALTHY, AND ETHICAL MEMBER OF AN UNHAPPY, UNHEALTHY, AND UNETHICAL PROFESSION
Dear Law Student:
I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth--and, in the view of many, one of the most unethical. The good news is that you can join this profession and still be happy, healthy, and ethical. I am writing to tell you how.
I. The Well-Being of Lawyers
Lawyers play an enormously important role in our society. “It is the lawyers who run our civilization for us--our governments, our business, our private lives.” Thus you might expect that a lot of people would be concerned about the physical and mental health of lawyers. You would be wrong. Contrary to the old joke, scientists have not replaced laboratory rats with lawyers, and medical literature has little to say about the well-being of attorneys. . . .[L]egal scholarship also has little to say about the well-being of attorneys.
If one looks hard enough, though, one can scratch up some information about the health and happiness of attorneys. And this information--although rather sparse and, in some cases, of limited value--strongly suggests that lawyers are in remarkably poor health and quite unhappy.
A. Lawyers' Poor Health
Lawyers seem to be among the most depressed people in America. In 1990, researchers affiliated with Johns Hopkins University studied the prevalence of major depressive disorder (“MDD”) across 104 occupations. They discovered that, although only about 3% to 5% of the general population suffers from MDD, the prevalence of MDD exceeds 10% in five occupations: data-entry keyers, computer equipment operators, typists, pre-kindergarten and special education teachers, and lawyers. When the results were adjusted for age, gender, education, and race/ethnic background to determine to what extent those in each occupation were more depressed than others who shared their most important sociodemographic traits, only three occupations were discovered to have statistically significant elevations of MDD: lawyers, pre-kindergarten and special education teachers, and secretaries. Lawyers topped the list, suffering from MDD at a rate 3.6 times higher than non-lawyers who shared their key sociodemographic traits. The researchers did not know whether lawyers were depressed because “persons at high risk for major depressive disorder” are attracted to the legal profession or because practicing law “causes or precipitates depression.” They just knew that, whatever the reason, lawyers were depressed.
Other studies have produced similar results. . . A study of law students and practicing lawyers in Arizona discovered that when students enter law school, they suffer from depression at approximately the same rate as the general population. However, by the spring of the first year of law school, 32% of law students suffer from depression, and by the spring of the third year of law school, the figure escalates to an astonishing 40%. Two years after graduation, the rate of depression falls, but only to 17%, or roughly double the level of the general population.
. . .
2. Anxiety and Other Mental Illness
Depression is not the only emotional impairment that seems to be more prevalent among lawyers than among the general population. The Arizona study also found elevated rates of anxiety, hostility, and paranoia among law students and lawyers. Over 25% of North Carolina lawyers reported that they had experienced physical symptoms of extreme anxiety (including trembling hands, racing hearts, clammy hands, and faintness) at least three times per month during the past year. And the Washington study found indicia of anxiety, social alienation and isolation, obsessive-compulsiveness, paranoid ideation, interpersonal sensitivity, phobic anxiety, and hostility in “alarming” rates among lawyers--rates many times the national norms. For example:
(T)he base rate (in the general population) for obsessive-compulsiveness is 1.4-2%, yet nearly 21% of the male lawyers and 15% of the female lawyers in the study score above the clinical cutoff on the measure of obsessive-compulsiveness. The same pattern exists in regard to generalized anxiety disorder where the base rate is 4%, while 30% of the male lawyers and nearly 20% of the female lawyers in the study report scores above the clinical cutoff on the measure of anxiety.
3. Alcoholism and Drug Abuse
Lawyers appear to be prodigious drinkers. The North Carolina study reported that almost 17% of lawyers admitted to drinking three to five alcoholic beverages every day. One researcher conservatively estimated that 15% of lawyers are alcoholics. The study of Washington lawyers found that 18% were “problem drinkers,” a percentage “almost twice the approximately 10 percent alcohol abuse and/or dependency prevalence rates estimated for adults in the United States.” . .
Marriage is good for people. “(T)he research on marriage is striking. For decades, studies have shown that the married live longer and have a lower risk of a variety of physical and psychological illnesses than the unmarried.” Also, those who are married report higher levels of career satisfaction than those who are single. The North Carolina study confirmed that what is true for people generally is also true for lawyers specifically: Among lawyers, “changing from single to married status directly increases happiness and satisfaction with life. Marriage also leads to greater job and career satisfaction . . . and improves health.” The North Carolina study identified unmarried lawyers as one of three categories of lawyers least satisfied with their lives.
Likewise, divorce is bad for people, both physically and psychologically (and, for women, economically). Those who divorce die younger than either those who never marry or those who stay married. Indeed, the impact of getting divorced on life expectancy is “only slightly less harmful . . . than smoking a pack or more of cigarettes per day.” . . . Psychologically, divorce is devastating: “Of all the social variables relating to the incidence of psychiatric disorders, or psychopathology, in the population, none appears to be more crucial than marital status.” . .. And, not surprising, the suicide rate of those who are divorced is almost triple the rate of those who are married, and significantly higher than the rates of those who have never married or been widowed.
Although empirical research is sparse, there is some indication that the divorce rate among lawyers is higher than the divorce rate among other professionals. Felicia Baker LeClere of Notre Dame's Center for the Study of Contemporary Society compared the incidence of divorce among lawyers to the incidence of divorce among doctors, using data from the 1990 census. LeClere found that the percentage of lawyers who are divorced is higher than the percentage of doctors who are divorced and that the difference is particularly pronouncedamong women. For example, over 16% of female attorneys between the ages of thirty-five and forty-nine are divorced, as compared to 11% of female doctors in the same age range. Similarly, among ages fifty to sixty-four, over 24% of female lawyers are divorced, as compared to about 15% of female doctors.
6. Physical Health
The extremely limited information that is available indicates that the physical health of lawyers may not be much better than their emotional health. As noted, substantial numbers of lawyers report suffering physical symptoms of depression and anxiety, such as appetite loss, trembling hands, racing hearts, and the like. But lawyers also seem not to exercise much and to suffer from ulcers, coronary artery disease, and hypertension in substantial numbers. . . .
In sum, attorneys seem to be an unhealthy lot. Researchers do not know whether lawyers are unhealthy because unhealthy people are attracted to the legal profession or because something about the practice of law turns healthy people into unhealthy people. But the few researchers who have studied the legal profession are unanimous that lawyers are, as a group, in remarkably poor health.
B. Lawyers' Unhappiness
People who are this unhealthy--people who suffer from depression, anxiety, alcoholism, drug abuse, divorce, and suicide to this extent--are almost by definition unhappy. It should not be surprising, then, that lawyers are indeed unhappy, nor should it be surprising that the source of their unhappiness seems to be the one thing that they have in common: their work as lawyers. “Work satisfaction affects life satisfaction.” Almost a century ago, Russian playwright Maxim Gorky wrote: “When work is a pleasure, life is a joy! When work is a duty, life is slavery.” If Gorky was right, then life for many lawyers is “slavery,” as “job dissatisfaction among lawyers is widespread, profound and growing worse.”
A study of California lawyers by the RAND Institute for Civil Justice found that “only half say if they had to do it over, they would become lawyers.” . . . Almost a quarter of North Carolina lawyers said that, if given the choice, they would not become attorneys again; almost half said that they hope to leave the practice of law before the end of their careers; and over 40% said that they would not encourage their children or other qualified persons to enter the legal profession. Along the same lines, a nationwide poll of attorneys conducted by the National Law Journal found that less than a third of those surveyed were “very satisfied” with their careers.
The most comprehensive data on career satisfaction of lawyers were produced by three national surveys conducted under the auspices of the Young Lawyers Division of the American Bar Association (“ABA”). The first survey, conducted in 1984, asked 3000 lawyers of all ages--some of whom were ABA members and some of whom were not--about job satisfaction and many other matters. It was, according to the ABA, “the first in-depth survey of the legal profession in order to accurately study the state of the profession and determine the extent of career dissatisfaction.” The second survey, conducted in 1990, resurveyed those who had responded to the 1984 survey, and also questioned just over 1000 lawyers who had been admitted to the bar after the 1984 survey had been concluded. The third survey, conducted in 1995, was more limited. Only “young lawyers” who belonged to the ABA were questioned--“young lawyers” being defined as those who were under the age of thirty-six or who had been admitted to practice for less than three years. Moreover, the focus of the 1995 survey was narrower than the focus of the 1984 and 1990 surveys.
Taken together, the surveys show a substantial decline in the job satisfaction of attorneys. In 1984, 41% of lawyers said that they were “very satisfied” with their jobs; in 1990, only 33% of all lawyers surveyed were “very satisfied,” a decline of one-fifth in just six years. At the same time, the number of lawyers who were “very dissatisfied” with their jobs rose from 3% in 1984 to 5% in 1990. The dissatisfaction was widespread. In the words of the 1990 study:
In the past six years, the extent of lawyer dissatisfaction has increased throughout the profession. It is now reported in significant numbers by lawyers in all positions--partners as well as junior associates. It is now present in significant numbers in firms of all sizes, not just the largest and the smallest firms.
The decrease in job satisfaction was even more dramatic among those lawyers who were surveyed in both 1984 and 1990. As noted, 40% of them had been “very satisfied” and 3% “very dissatisfied” in 1984. Just six years later, only 29% of these same lawyers (that is, the lawyers who were questioned in both 1984 and 1990) were “very satisfied,” and the number who were “very dissatisfied” had risen to 8%. As the study recognized, the sharp rise in job dissatisfaction among the lawyers who were surveyed in both 1984 and 1990 was particularly disturbing, given that these lawyers were “further along in their careers(,) . . . better placed, and earning more money in 1990 than they were in 1984.”
Because the 1995 survey asked fewer and different questions and surveyed only young members of the ABA, it is difficult to compare its results with the results of the previous two surveys. But the 1995 results were troubling enough on their own. Even though the attorneys surveyed in 1995 had just started their legal careers, over 27% were already “somewhat” or “very” dissatisfied with the practice of law; only about one in five was “very” satisfied. Almost one third of the young lawyers said that they would “strongly” consider leaving their current position in the next two years, and almost another third said that they “might” consider doing so.
The second thing to note about the data described above is that all of these statistics relate to the overall level of career dissatisfaction among lawyers. It is important to understand, though, that career dissatisfaction is not distributed equally throughout the profession. Lawyers in some practice settings are happier than lawyers in others. And “(l)awyers in large law firms are often among the least happy.” This appears to be true for both associates and partners.
A 1997 study of lawyers practicing in the Boston area found that associates in big firms were the least happy of the eight categories of lawyers studied. The Chicago study, which found generally high levels of career satisfaction among attorneys, nevertheless found that “(t)he percentage of ‘very satisfied’ respondents is ten points lower in the large firm category than in any of the other practice settings.” For the last several years, Michigan Law School has found the career satisfaction of its recent graduates who work in big firms to be declining and, on the whole, to be “lower than (that of) any other work-setting group we study.” . . .
It is also telling that lawyers who leave big firms rarely go to other big firms. One study reported that when attorneys who were interested in changing jobs were “asked to indicate the type of firm or other job they were going to look at, only a small percentage of those currently in large firms indicated they were going to look at another large firm.” At the same time, “almost no one from a medium or small firm was interested in looking at a large firm.” Another study found that only 5% of lawyers who left large Chicago firms went to other large Chicago firms; most went to small firms or in-house.
Many big firm partners are also dissatisfied. Indeed, “(h)appy law partners are a small minority these days.” A 1997 survey of partners in the 125 largest American law firms found that one third of those partners-- lawyers who, in the eyes of many, have reached the pinnacle of their profession--would choose a different career if they could do it over again. Almost one third of them thought that they would probably or definitely not remain at their firms until retirement, and over 80% said that the nature of private practice in big firms had changed for the worse. . .
II. Explaining the Poor Health and Unhappiness of Lawyers
A. The Hours
Why are lawyers so unhealthy and unhappy? Why do so many lawyers, in the words of Judge Laurence Silberman, “hate what the practice of law has become”? Lawyers give many reasons. They complain about the commercialization of the legal profession--about the fact that practicing law has become less of a profession and more of a business. They complain about the increased pressure to attract and retain clients in a ferociously competitive marketplace. They complain about having to work in an adversarial environment “in which aggression, selfishness, hostility, suspiciousness, and cynicism are widespread.” They complain about not having control over their lives and about being at the mercy of judges and clients. They complain about a lack of civility among lawyers. They complain about a lack of collegiality and loyalty among their partners. And they complain about their poor public image. Mostly, though, they complain about the hours.
In every study of the career satisfaction of lawyers of which I am aware, in every book or article about the woes of the legal profession that I have read, and in every conversation about life as a practicing lawyer that I have heard, lawyers complain about the long hours they have to work. Without question, “the single biggest omplaint among attorneys is increasingly long workdays with decreasing time for personal and family life.” Lawyers are complaining with increasing vehemence about “living to work, rather than working to live” --about being “ ‘asked not to dedicate, but to sacrifice their lives to the firm.’ “
To cite just a few examples: A national survey of lawyers by the National Law Journal reported that “most attorneys in the survey believed their careers were putting too much of a burden on their personal lives. When asked what they especially disliked about practicing law, more than half (54 percent) mentioned too many hours/not enough time for a personal life.” The 1990 ABA study, after describing increasing job dissatisfaction among attorneys, said that “(t)his increased dissatisfaction is directly caused by a deterioration of the lawyer workplace . . . . In particular, the amount of time lawyers have for themselves and their families has become an issue of major concern for many lawyers.” . . .And the report of a national conference convened by the ABA to address “the emerging crisis in the quality of lawyers' health and lives” singled out as a “significant” cause of this crisis the fact that lawyers “do not have enough time for themselves and their families--what many have come to call ‘the time famine.’
. . . “Conventional wisdom just a few decades ago was that lawyers could not reasonably expect to charge for more than 1200 to 1500 hours per year.” Thirty years ago, most partners billed between 1200 and 1400 hours per year and most .associates between 1400 and 1600 hours. As late as the mid-1980s, even associates in large New York firms were often not expected to bill more that 1800 hours annually. Today, many firms would consider these ranges acceptable only for partners or associates who had died midway through the year.
A study conducted by William Ross in 1991 discovered that almost half of the associates in private practice billed at least 2000 hours during both 1989 and 1990, and a fifth billed at least 2400 hours in 1990. Seventy percent of those responding to the Michigan Law School survey worked an average of fifty or more hours per week; over a quarter of the respondents worked more than sixty hours per week. . . .
Workloads, like the job dissatisfaction to which they so closely relate, are not distributed equally throughout the profession. Generally speaking, lawyers in private practice work longer hours than those who work for corporations or for the government. In the 1990 ABA survey, for example, only 56% of those in private practice agreed that they had enough time to spend with their families, compared to 74% of corporate lawyers and 79% of government lawyers. Similarly, only 46% of private practitioners said that they had enough time for themselves, compared to 53% of corporate lawyers and 66% of government lawyers. In the words of the study, “(t)ime for family and self is a real problem for lawyers in private practice. Far fewer lawyers in corporate counsel and government settings have insufficient time.” . . .
Within private practice, the general rule of thumb is the bigger the firm, the longer the hours. For example, a recent study found that over 41% of associates in firms of under 101 lawyers billed fewer than 1800 hours, as compared to about 16% of associates in firms of over 250 lawyers. . . .At the biggest firms in the biggest cities, associates commonly bill 2000 to 2500 hours per year. Big firm partners do not have it much better. Junior partners at the nation's 125 largest law firms average 1955.5 billable hours per year, almost 300 hours per year more than partners in small firms. . . .
The long hours that big firm lawyers must work is a particular source of dissatisfaction for them. While roughly half of all attorneys in private practice complain about not having enough time for themselves and their families, in big firms the proportion of similarly disaffected lawyers is about three quarters. . . .Among respondents to the Michigan Law School survey, 37% of those working as solo practitioners or in firms of ten or fewer lawyers were quite satisfied with “(t)he balance of family and professional lives,” while only 14% of those working in firms of 150 or more lawyers were similarly satisfied. Finally, young attorneys in large firms who are interested in finding a new job are more likely than similarly situated associates in small firms to be motivated by “a desire for more personal time.”
The unhappiness of lawyers may puzzle you. At first blush, these billable hour requirements may not seem particularly daunting. You may think, “Geez, to bill 2000 hours, I need to bill only forty hours per week for fifty weeks. If I take an hour for lunch, that's 8:00 a.m. to 5:00 p.m., five days per week. No sweat.” Your reaction is common among law students -- particularly among law students who are in the process of talking themselves into accepting jobs at big firms. Your reaction is also naïve.
There is a big difference--a painfully big difference--between the hours that you will bill and the hours that you will spend at work. If you're honest, you will be able to bill only the time that you spend working directly on matters for clients. Obviously, you will not be able to bill the time that you spend on vacation, or in bed with the flu, or at home waiting for the plumber. But you will also not be able to bill for much of what you will do at the office or during the workday--going to lunch, chatting with your co-workers about the latest office romance, visiting your favorite websites, going down the hall to get a cup of coffee, reading your mail, going to the bathroom, attending the weekly meeting of your practice group, filling out your time sheet, talking with your spouse on the phone, sending e-mail to friends, preparing a “pitch” for a prospective client, getting your hair cut, attending a funeral, photocopying your tax returns, interviewing a recruit, playing Solitaire on your computer, doing pro bono work, reading advance sheets, taking a summer associate to a baseball game, attending CLE seminars, writing a letter about a mistake in your credit card bill, going to the dentist, dropping off your dry cleaning, daydreaming, and so on.
Because none of this is billable--and because the average lawyer does a lot of this every day--you will end up billing only about two hours for every three hours that you spend at “work.” And thus, to bill 2000 hours per year, you will have to spend about sixty hours per week at the office, and take no more than two weeks of vacation/sick time/personal leave. If it takes you, say, forty-five minutes to get to work, and another forty-five minutes to get home, billing 2000 hours per year will mean leaving home at 7:45 a.m., working at the office from 8:30 a.m. until 6:30 p.m., and then arriving home at 7:15 p.m.--and doing this six days per week, every week. That makes for long days, and for long weeks. And you will have to work these hours not just for a month or two, but year after year after year. That makes for a long life.
Now do you understand why so many attorneys are unhappy? And why, generally speaking, the more lawyers work, the less happy they are? What makes people happy is the nature of the work they do and the quantity and quality of their lives outside of work. Long hours at the office have no relationship to the former and take away from the latter. Every hour that lawyers spend at their desks is an hour that they do not spend doing many of the things that give their lives joy and meaning: being with their spouses, playing with their children, relaxing with their friends, visiting their parents, going to movies, reading books, volunteering at the homeless shelter, playing softball, collecting stamps, traveling the world, getting involved in a political campaign, going to church, working out at a health club. There's no mystery about why lawyers are so unhappy: They work too much.
B. The Money
Why do lawyers work too much? At this point, I'm afraid that we have to leave the realm of fact and enter the realm of opinion. No one knows for certain why so many lawyers work so hard, although many people have opinions. I have one, too--at least about the lawyers who work in big firms (who, as noted, are also the lawyers who work the longest hours and are the least happy with the imbalance between their personal and professional lives). Admittedly, my opinion is just an opinion, but it is based on a lot of experience. I practiced law for eight years in a big firm--six as an associate, two as a partner--and spent much of that time working with and against other big firm lawyers. Most of my law school classmates went on to practice at big firms, as did most of those with whom I clerked. And even today, many of my friends and acquaintances are lawyers who have practiced or are practicing in big firms.
Because my experience is in big firms, and because so many law students want to work in big firms, big firms will be the focus of the remainder of this Article. I recognize, of course, that working for a big firm may not be an option for you. You should nevertheless read the remainder of this Article. First, if you are a typical student who does not have the option of working at a big firm, you probably regret that fact and you may even spend a substantial amount of time envying others who can go to big firms. Second, just because you cannot work at a big firm now does not mean that you will not be able to work at a big firm in the future. If you assemble a large stable of clients or if your college roommate is elected governor or if you establish a reputation as a top trial lawyer, the doors of big firms will open to you. Third, even if you never have the chance to work at a big firm, you almost surely will have the chance to work at a firm that acts like a big firm. Small firms, corporate legal departments, government offices, and even public interest firms “have borrowed many features of large-firm practice.” Finally, even if working at a big firm--or at a small or medium firm that acts like a big firm-- holds absolutely no appeal for you, big firms exercise a disproportionate influence on the profession you are about to enter, and you need to understand the nature of that influence.
In one sense, the answer to the question of why so many lawyers work so much is easy: It's the money, stupid. It begins with law students, who, like most Americans, seem to be more materialistic than they were twenty-five or thirty years ago. In 1970, 39% of students entering college said that “being very well off financially” was either an “essential” or a “very important” life goal; in 1993, the figure had almost doubled to 75%. Of nineteen possible life goals suggested to incoming college students, getting rich was selected most often--even more often than “raising a family.” Not surprisingly, then, “the most coveted jobs amongst (law students) are high-paying large law firm jobs.” The vast majority of law students--at least the vast majority of those attending the more prestigious schools (or getting good grades at the less prestigious schools)--want to work in big firms. And the reason they want to work in big firms is that big firms pay the most.
Of course, students deny this. Students--many of whom came to law school intending to do public interest work --don't like to admit that they've “sold out,” so they come up with “rationalizations, justifications, accounts, and disclaimers” for seeking big firm jobs. They insist that the real reason they want to go to a big firm is the training, or the interesting and challenging work, or the chance to work with exceptionally talented colleagues, or the desire to “keep my doors open.” They imply that the huge salaries are just an afterthought--mere icing on the cake. Or they reluctantly admit that, yes, they really are after the money, but they have no choice: Because of student loan debt, they must take a job that pays $80,000 per year. $60,000 per year just won't cut it.
Most of this is hogwash. As I will explain below, almost all of the purported non-monetary advantages of big firms either do not exist or are vastly overstated. Moreover, there are few lawyers who could not live comfortably on what most corporations or government agencies pay, whatever their student loan debt. Students are after the money, pure and simple. The hiring partner of any major firm will tell you that if his firm offers first year associates a salary of $69,000, and a competitor down the street offers them $72,000, those who have the choice will flock to the competitor--even if the competitor will require them to bill 200 hours more each year.
I realize that I am not exactly flattering law students. But if this were not true, would big firms get into bidding wars for the services of the best law school graduates? Of course not. But big firms do get into bidding wars--all the time--and, as a result, the salaries of first year associates get pushed to extraordinary levels. . . ..
How do firms pay for this ever-spiraling increase in salaries? In theory, they have two options: First, they can raise billing rates. Instead of charging, say, $100 per hour for the time of first year associates, they can charge $115, and instead of charging, say, $225 per hour for the time of junior partners, they can charge $250. Second, they can bill more hours. Instead of demanding 2000 billable hours per year from first year associates, they can demand 2100, and instead of demanding 1900 billable hours per year from junior partners, they can demand 1950.
In reality, though, firms have only one option: They have to bill more hours. The market for lawyers' services has become intensely competitive. . . .Raising billing rates to pay for spiraling salaries is simply not much of an option for most firms. As a result, firms get the extra money to pay for the spiraling salaries in the only way they can: They bill more hours. Everyone has to work harder to pay for the higher salaries. And when salaries go up again, everyone has to work still harder. Associate compensation has increased 1000% in the past thirty years, while billing rates have increased only 400%. Obviously, “law firms have paid for the higher salaries by increasing billable hours rather than charging higher rates.”
I am leaving out one wrinkle--an important wrinkle that you should know about if you are contemplating joining a large law firm (or a firm that acts like a large law firm). The partners of a big firm have a third option for making more money. This option involves what big firm partners euphemistically refer to as “leverage.” I like to call it “the skim.” Richard Abel calls it “exploitation.” The person being exploited is you.
It is common for the top partners in the biggest firms to earn upwards of $2 million per year. . . . Not one of these highly paid partners could personally generate the billings necessary to produce such an income. . . So how can big firm partners take home double or triple or quadruple the revenue they generate? They can do so because partner compensation reflects not only the revenue that partners themselves generate, but also “the surplus value law firms extract from associates.” Alex Johnson puts the point more dramatically: “(T)he blood and sweat of new associates line() the pockets of the senior members of the firm.”
Basically, what happens is that big firms “buy associates' time ‘wholesale and sell it retail.’ . . .Here is how it works: As a new associate in a large firm, you will be paid about one-third of what you bring into the firm. If you bill, say, 2000 hours at $100 per hour, you will generate $200,000 in revenue for your firm. About a third of that--$70,000 or so--will be paid to you. Another third will go toward paying the expenses of the firm. And the final third will go into the pockets of the firm's partners. Firms make money off associates. That is why it's in the interests of big firms to hire lots of associates and to make very few of them partners. The more associates there are, the more profits for the partners to split, and the fewer partners there are, the bigger each partner's share.
. . .
It should not surprise you that, generally speaking, the bigger the firm, the more the leverage. The median ratio of associates to partners . . . increases with the size of the firm. . . .. . . The stark relationship between firm size and partnership compensation cannot be explained by differences in hourly rates, hours billed, or quality of legal services. Rather, it results from the skim.
This, then, is life in the big firm: It is in the interests of clients that senior partners work inhuman hours, year after year, and constantly be anxious about retaining their business. And it is in the interests of senior partners that junior partners work inhuman hours, year after year, and constantly be anxious about retaining old clients and attracting new clients. And it is in the interests of junior partners that senior associates work inhuman hours, year after year, and constantly be anxious about retaining old clients and attracting new clients and making partner. And most of all, it is in everyone's interests that the newest members of the profession--the junior associates--be willing to work inhuman hours, year after year, and constantly be anxious about everything--about retaining old clients and attracting new clients and making partner and keeping up their billable hours. The result? Long hours, large salaries, and one of the unhealthiest and unhappiest professions on earth.
C. The “Game”
But something is wrong here. Something doesn't make sense.
As I have tried to convey, the profession that you are about to enter is absolutely obsessed with money. “(M)oney is not just incidental to the practice, but at its core.” Money is at the root of virtually everything that lawyers don't like about their profession: the long hours, the commercialization, the tremendous pressure to attract and retain clients, the fiercely competitive marketplace, the lack of collegiality and loyalty among partners, the poor public image of the profession, and even the lack of civility. Almost every one of these problems would be eliminated or at least substantially reduced if lawyers were simply willing to make less money. The North Carolina Bar Association had it exactly right: “(T)he misguided view of money as the sole goal of practice, sole measure of success and sole measure of self-worth is directly and indirectly responsible for many of the problems in practice today.”
The notion that lawyers could get by with less money is not exactly absurd. In 1994, the median income for American men employed full-time during the entire year was $31,612; for women, the comparable figure was $23,265. In 1995, the median income for partners in firms of all sizes was $168,751;. . . In the largest firms (those of seventy-five or more lawyers), partners' median income was $190,408. These figures are from 1995; although similar figures are not available from later years, we know that the incomes of law firm partners rose dramatically 4 in 1996 and 1997. At those firms qualifying for the “Am Law 100,” the average profits per partner rose to $587,000 in 1997. It's not as if lawyers are just scraping by.
At the same time that lawyers are enjoying these fantastic incomes, many are dissatisfied with their professional lives, and their single biggest complaint is the long hours they have to work. Lawyers could enjoy a lot more life outside of work if they were willing to accept relatively modest reductions in their incomes. Take, for example, a partner who is billing 2000 hours and being paid $200,000. . . ..
Our hypothetical partner has a choice, then: He can make $200,000 per year and work many nights and most weekends--routinely getting up early, before his children are awake, driving to the office, eating lunch at his desk, leaving the office late, picking up dinner at the Taco Bell drive-through window, and then arriving home to kiss the cheeks of his sleeping children. Or he can make $160,000 per year and work few nights and weekends. He can spend time with his spouse, be a parent to his children, enjoy the company of his friends, pursue a hobby, do volunteer work, exercise regularly, and generally lead a well balanced life--while still making $160,000 per year. If all such lawyers making $160,000 per year sat down and asked themselves, “What will make me a happier and healthier person: another $40,000 in income (which, after taxes, will mean another $25,000 or so in the bank) or 600 hours to do whatever I enjoy most?,” it is hard to believe that many of them would take the money.
But many of them do take the money. Thousands of lawyers choose to give up a healthy, happy, well-balanced life for a less healthy, less happy life dominated by work. And they do so merely to be able to make seven or eight times the national median income instead of five or six times the national median income. Why? Are lawyers just greedy?
Well, some are, but it is more complicated than that. For one thing, lawyers don't think in these terms. They don't see their lives as crazy. Lawyers don't see any of this. Lawyers don't sit down and think logically about why they are leading the lives they are leading any more than buffalo sit down and think logically about why they are stampeding. That is the primary reason I am writing this Article: I hope that you will sit down and think about the life that you want to lead before you get caught up in the stampede.
More importantly, though, the flaw in my analysis is that it assumes that the reason lawyers push themselves to make so much money is the money itself. . . . What you need to understand, though, is that very few lawyers are working extraordinarily long hours because they need the money. They are doing it for a different reason.
Big firm lawyers are, on the whole, a remarkably insecure and competitive group of people. Many of them have spent almost their entire lives competing to win games that other people have set up for them. First they competed to get into a prestigious college. Then they competed for college grades. Then they competed for LSAT scores. Then they competed to get into a prestigious law school. Then they competed for law school grades. Then they competed to make the law review. Then they competed for clerkships. Then they competed to get hired by a big law firm.
Now that they're in a big law firm, what's going to happen? Are they going to stop competing? Are they going to stop comparing themselves to others? Of course not. They're going to keep competing--competing to bill more hours, to attract more clients, to win more cases, to do more deals. They're playing a game. And money is how the score is kept in that game.
Why do you suppose sixty year old lawyers with millions of dollars in the bank still bill 2200 hours per year? Why do you suppose lawyers whose children have everything money can buy but who need the time and attention of their parents continue to spend most nights and weekends at the office--while continuing to write out checks to the best child psychologists in town? . . .
It is not because these lawyers need the money. Any of these lawyers could lose every penny of his savings and see his annual income reduced by two-thirds and still live much more comfortably than the vast majority of Americans. What's driving these lawyers is the desire to win the game. These lawyers have spent their entire lives competing against others and measuring their worth by how well they do in the competitions. And now that they are working in a law firm, money is the way they keep score. Money is what tells them if they're more successful than the lawyer in the next office--or in the next office building--or in the next town. If a lawyer's life is dominated by the game--and if his success in the game is measured by money--then his life is dominated by money. For many, many lawyers, it's that simple.
III. The Ethics of Lawyers
At this point, I should say a few words about ethics. I hesitate to do so. I know that courses on legal ethics (or “professional responsibility”) are among the least popular courses in the law school curriculum . . .
There are many reasons why ethics courses are so unpopular, but the most important is probably that law students do not think that they will become unethical lawyers. Students think of unethical lawyers as the sleazeballs who chase ambulances (think Danny DeVito in The Rainmaker) or run insurance scams (think Bill Murray in Wild Things) or destroy evidence (think Al Pacino's crew in The Devil's Advocate). Students have a hard time identifying with these lawyers. When students think of life after graduation, they see themselves sitting on the 27th floor of some skyscraper in a freshly pressed dark suit (blue, black, or gray) with a starched blouse or shirt (white or light blue) doing sophisticated legal work for sophisticated clients. Students imagine-- wrongly --that such lawyers do not have toworry much about ethics, except, perhaps, when the occasional conflict of interest question arises.
If you think this--if you think that you will not have any trouble practicing law ethically--you are wrong. Dead wrong. In fact, particularly if you go to work for a big firm, you will probably begin to practice law unethically in at least some respects within your first year or two in practice. This happens to most young lawyers in big firms. It happened to me, and it will happen to you, unless you do something about it.
A. Practicing Law Ethically
Let's first be clear on what I mean by practicing law ethically. I mean three things.
First, you generally have to comply with the formal disciplinary rules--either the Model Rules of Professional Conduct, the Model Code of Professional Responsibility, or some state variant of one or the other. As a law student, and then as a young lawyer, you will often be encouraged to distinguish ethical from unethical conduct solely by reference to the formal rules. Most likely, you will devote the majority of the time in your professional responsibility class to studying the rules, and you will, of course, learn the rules cold so that you can pass the Multi-State Professional Responsibility Exam (“MPRE”). In many other ways, subtle and blatant, you will be encouraged to think that conduct that does not violate the rules is “ethical,” while conduct that does violate the rules is “unethical.”
It is in the interests of your professors, the organized bar, and other lawyers to get you to think about ethics in this way. It is a lot easier for a professor to teach students what rules say than it is to explore with students what it means to behave ethically. Defining ethics with reference to rules puts tremendous power in the hands of the organized bar that writes those rules. And many lawyers want “the absence of disciplinary measures and adherence to the profession's own Model Rules of Professional Conduct” to be sufficient to qualify a lawyer as “ethical,” simply because it is easy to avoid disciplinary measures and to adhere to at least the letter of the formal rules.
I don't have anything against the formal rules. Often, they are all that stands between an unethical lawyer and a vulnerable client. You should learn them and follow them. But you should also understand that the formal rules represent nothing more than “the lowest common denominator of conduct that a highly self-interested group will tolerate.” For many lawyers, “(e)thics is a matter of steering, if necessary, just clear of the few unambiguous prohibitions found in rules governing lawyers.” But complying with the formal rules will not make you an ethical lawyer, any more than complying with the criminal law will make you an ethical person. Many of the sleaziest lawyers you will encounter will be absolutely scrupulous in their compliance with the formal rules. In fact, they will be only too happy to tell you just that. Complying with the rules is usually a necessary, but never a sufficient, part of being an ethical lawyer.
The second thing you must do to be an ethical lawyer is to act ethically in your work, even when you aren't required to do so by any rule. To a substantial extent, “bar ethical rules have lost touch with ordinary moral intuitions.” To practice law ethically you must practice law consistently with those intuitions. For the most part, this is not complicated. Being an ethical lawyer is not much different from being an ethical doctor or mail carrier or gas station attendant. Indeed, long before you applied to law school, your parents had probably taught you all that you need to know to practice law ethically. You should treat others as you want them to treat you. Be honest and fair. Show respect and compassion. Keep your promises. Here is a good rule of thumb: If you would be ashamed if your parents or spouse or children knew what you were doing, then you should not do it.
The third thing you must do to be an ethical lawyer is to live an ethical life. Many big firm lawyers--who can be remarkably “smug( ) about the superiority of the ethical standards of large firms” --ignore this point. So do many law professors who, when writing about legal ethics, tend to focus solely on the lawyer at work. But being admitted to the bar does not absolve you of your responsibilities outside of work--to your family, to your friends, to your community, and, if you're a person of faith, to your God. To practice law ethically, you must meet those responsibilities, which means that you must live a balanced life. If you become a workaholic lawyer, you will be unhealthy, probably unhappy, and, I would argue, unethical.
Now I recognize that we live in an age of moral relativism--an age in which “behavior is neither right nor wrong but a matter of personal choice.” Your reaction to my claim that an unbalanced life is an unethical life may very well be, “That's just your opinion.” It is my opinion, but it is surely not just my opinion. I would be surprised if the belief system to which you subscribe--whether it be religiously or secularly based--regards a life dominated by the pursuit of wealth to the exclusion of all else as an ethical life, or an attorney who meets only his responsibilities to his clients and law partners as an ethical person.
B. Big Firm Culture
It is hard to practice law ethically. Complying with the formal rules is the easy part. The rules are not very specific, and they don't demand very much. You may, on rare occasions, confront an extremely difficult conflict of interest problem that will require you to parse the rules carefully. You may even confront a situation in which some ethical or moral imperative compels you to violate the rules. But by and large, you will have no trouble complying with the rules; indeed, you are unlikely to give the rules much thought.
Acting as an ethical lawyer in the broader, non-formalistic sense is far more difficult. I have already given you some idea of why it is hard to practice law in a big firm (or any firm that emulates a big firm) and live a balanced life; I will return to that point in a moment. But even practicing law ethically in the sense of being honest and fair and compassionate is difficult. To understand why, you need to understand what it is that you will do every day as a lawyer.
Most of a lawyer's working life is filled with the mundane. It is unlikely that one of your clients will drop a smoking gun on your desk or ask you to deliver a briefcase full of unmarked bills or invite you to have wild, passionate sex (or even un-wild, un-passionate sex). These things happen to lawyers only in John Grisham novels. Your life as a lawyer will be filled with the kind of things that drove John Grisham to write novels: dictating letters and talking on the phone and drafting memoranda and performing “due diligence” and proofreading contracts and negotiating settlements and filling out time sheets. And because your life as a lawyer will be filled with the mundane, whether you practice law ethically will depend not upon how you resolve the one or two dramatic ethical dilemmas that you will confront during your entire career, but upon the hundreds of little things that you will do, almost unthinkingly, each and every day.
Because practicing law ethically will depend primarily upon the hundreds of little things that you will do almost unthinkingly every day, it will not depend much upon your thinking. You are going to be busy. . . . You are going to have to act almost instinctively.
What this means, then, is that you will not practice law ethically--you cannot practice law ethically--unless acting ethically is habitual for you. You have to be in the habit of being honest. You have to be in the habit of being fair. You have to be in the habit of being compassionate. These qualities have to be deeply ingrained in you, so that you can't turn them on and off--so that acting honorably is not something you have to decide to do--so that when you are at work, making the thousands of phone calls you will make and writing the thousands of letters you will write and dealing with the thousands of people with whom you will deal, you will automatically apply the same values in the workplace that you apply outside of work, when you are with family and friends.
Here is the problem, though: After you start practicing law, nothing is likely to influence you more than “the culture or house norms of the agency, department, or firm” in which you work. If you are going into private practice--particularly private practice in a big firm--you are going to be immersed in a culture that is hostile to the values you now have. The system does not want you to apply the same values in the workplace that you do outside of work (unless you're rapaciously greedy outside of work); it wants you to replace those values with the system's values. The system is obsessed with money, and it wants you to be, too. The system wants you--it needs you--to play the game.
Now, no one is going to say this to you. No one is going to take you aside and say, “Jane, we here at Smith & Jones are obsessed with money. From this point forward the most important thing in your life has to be billing hours and generating business. Family and friends and honesty and fairness are okay in moderation, but don't let them interfere with making money.” No one will tell you, as one lawyer told another in a Charles Addams cartoon, “I admire your honesty and integrity, Wilson, but I have no room for them in my firm.” Instead, the culture will pressure you in more subtle ways to replace your values with the system's.
Here is an example of what I mean: During your first month working at the big firm, some senior partner will invite you and the other new associates to a barbeque at his home. This “barbeque” will bear absolutely no relationship to what your father used to do on a Weber grill in your driveway. You will drive up to the senior partner's home in your rusted Escort and park at the end of a long line of Mercedeses and BMWs and sports utility vehicles. You will walk up to the front door of the house. The house will be enormous. The lawn will look like a putting green; it will be bordered by perfectly manicured trees and flowers. Somebody wearing a white shirt and black bow tie will answer the door and direct you to the backyard. You will walk through one room after another, each of which will be decorated with expensive carpeting and expensive wallpaper and expensive antiques. Scattered throughout the home will be large professional photographs of beautiful children with tousled, sun-bleached hair.
As you enter the partner's immaculately landscaped backyard, someone wearing a white shirt and black bow tie carrying a silver platter will approach you and offer you an appetizer. Don't look for cocktail weenies in barbeque sauce; you will more likely be offered pâté or miniature quiches or shrimp. A bar will be set up near the house; the bartender (who will be wearing a white shirt and black bow tie, of course) will pour you a drink of the most expensive brand of whatever liquor you like. In the corner of the yard, a caterer will be grilling swordfish. In another corner will stand the senior partner, sipping a glass of white wine, holding court with a worshipful group of junior partners and senior associates.
The senior partner will be wearing designer sunglasses and designer clothes; the logo on his shirt will signal its exorbitant cost; his shorts will be pressed. He will have a tan--albeit a slightly orange, tanning salon enhanced tan--and the nicest haircut you've ever seen. Eventually, the partner will introduce you to his wife. She will be beautiful, very thin, and a lot younger than her husband. She, too, will have a great tan, and not nearly as orange as her husband's. You and the other lawyers will talk about golf. Or about tennis. After a couple hours, you will walk out the front door, slightly tipsy from the free liquor, and say to yourself, “This is the life.”
In this and a thousand other ways, you will absorb big firm culture -- a culture of long hours of toil inside the office and short hours of conspicuous consumption outside the office. You will work among lawyers who will talk about money constantly. . .
The lawyers in your firm are not unique. Thirty or forty years ago, talking about income and clients and fees ” ‘just (wa)sn't done,’ ” even among Wall Street lawyers. Today, “(t)he legal profession . . . has become extraordinarily self-conscious about making money,” and “the new legal journalism (has) hone(d) this self-consciousness to a sharp comparative and competitive edge.” Just about every issue of the National Law Journal or the American Lawyer seems to include at least one article about how much money some lawyer somewhere is making. A couple times a year, these journals publish extensive surveys of lawyers' incomes--focusing in particular on the incomes of associates and partners in big firms. These surveys are pored over by lawyers with the intensity that small children bring to poring over the statistics of their favorite baseball players. Want to know what a first year associate at Irell & Manella in Los Angeles makes? $88,000. How about a sixth year associate at Dewey Ballantine in New York? $166,500, plus a $26,500 bonus. Profits per partner at McDermott, Will & Emery in Chicago? $700,000. Reading about the incomes of your rivals will bring on either intense envy or smug Schadenfreude.
Big firm culture also reflects the many ways in which lawyers who are winning the game broadcast their success. A first year male associate will buy his suits off the rack at a department store; a couple years later, he will be at Brooks Brothers; a few years after that, a salesperson will come to his office, with tape measures and fabric swatches in hand. Similar ostentatious progress will be demonstrated with regard to everything from watches to cell phones to running shoes to child care arrangements to private social clubs. When lawyers speak with envy or admiration about other lawyers, they do not mention a lawyer's devotion to family or public service, or a lawyer's innate sense of fairness, or even a lawyer's skill at trying cases or closing deals, nearly as much as they mention a lawyer's billable hours, or stable of clients, or annual income.
It is very difficult for a young lawyer immersed in this culture day after day to maintain the values she had as a law student. Slowly, almost imperceptibly, young lawyers change. They begin to admire things they did not admire before, be ashamed of things they were not ashamed of before, find it impossible to live without things they lived without before. Somewhere, somehow, a lawyer changes from a person who gets intense pleasure from being able to buy her first car stereo to a person enraged over a $400,000 bonus, when a colleague across town got $425,000.
C. Becoming Unethical
As the values of an attorney change, so, too, does her ability to practice law ethically. The process that I have described will obviously push a lawyer away from practicing law ethically in the broadest sense--that is, in the sense of leading a balanced life and meeting non-work-related responsibilities. When work becomes all-consuming, it consumes all. To succeed in today's big firm, a lawyer must live without a single “compelling, time consuming, and deeply valued interest outside the practice of law.” If you are working all the time, you will not--you cannot--meet any other responsibilities that require any appreciable commitment of time or energy. This much is obvious. However, absorbing the values of big firm culture will also push a lawyer away from practicing law ethically in the narrower sense of being honest and fair and compassionate. In the highly competitive, money-obsessed world of big firm practice, “(m)ost of the new incentives for lawyers, such as attracting and retaining clients, push toward stretching ethical concerns to the limit.”
Unethical lawyers do not start out being unethical; they start out just like you--as perfectly decent young men or women who have every intention of practicing law ethically. They do not become unethical overnight; they become unethical just as you will (if you become unethical)--a little bit at a time. And they do not become unethical by shredding incriminating documents or bribing jurors; they become unethical just as you are likely to--by cutting a corner here, by stretching the truth a bit there.
Let me tell you how you will start acting unethically: It will start with your time sheets. One day, not too long after you start practicing law, you will sit down at the end of a long, tiring day, and you just won't have much to show for your efforts in terms of billable hours. It will be near the end of the month. You will know that all of the partners will be looking at your monthly time report in a few days, so what you'll do is pad your time sheet just a bit. Maybe you will bill a client for ninety minutes for a task that really took you only sixty minutes to perform. However, you will promise yourself that you will repay the client at the first opportunity by doing thirty minutes of work for the client for “free.” In this way, you will be “borrowing,” not “stealing.”
And then what will happen is that it will become easier and easier to take these little loans against future work. And then, after a while, you will stop paying back these little loans. You will convince yourself that, although you billed for ninety minutes and spent only sixty minutes on the project, you did such good work that your client should pay a bit more for it. After all, your billing rate is awfully low, and your client is awfully rich.
. . .. And, before long--it won't take you much more than three or four years-- you will be stealing from your clients almost every day, and you won't even notice it.
You know what? You will also likely become a liar. A deadline will come up one day, and, for reasons that are entirely your fault, you will not be able to meet it. So you will call your senior partner or your client and make up a white lie for why you missed the deadline. And then you will get busy and a partner will ask whether you proofread a lengthy prospectus and you will say yes, even though you didn't. And then you will be drafting a brief and you will quote language from a Supreme Court opinion even though you will know that, when read in context, the language does not remotely suggest what you are implying it suggests. And then, in preparing a client for a deposition, you will help the client to formulate an answer to a difficult question that will likely be asked--an answer that will be “legally accurate” but that will mislead your opponent. And then you will be reading through a big box of your client's documents--a box that has not been opened in twenty years--and you will find a document that would hurt your client's case, but that no one except you knows exists, and you will simply “forget” to produce it in response to your opponent's discovery requests.
Do you see what will happen? After a couple years of this, you won't even notice that you are lying and cheating and stealing every day that you practice law. None of these things will seem like a big deal in itself--an extra fifteen minutes added to a time sheet here, a little white lie to cover a missed deadline there. But, after a while, your entire frame of reference will change. You will still be making dozens of quick, instinctive decisions every day, but those decisions, instead of reflecting the notions of right and wrong by which you conduct your personal life, will instead reflect the set of values by which you will conduct your professional life--a set of values that embodies not what is right or wrong, but what is profitable, and what you can get away with. The system will have succeeded in replacing your values with the system's values, and the system will be profiting as a result.
Does this happen to every big firm lawyer? Of course not. It's all a matter of degree. The culture in some big firms is better than in others. Every year I steer students who are intent on big firm practice toward some firms and away from others, precisely because some large firms are better places to work than others. I could tell you many stories about big firms going out of their way to show compassion to a partner with a drinking problem or a loyal client who could not pay its bills or a rival attorney who is over the hill and on the verge of embarrassing himself. The big firm at which I practiced was as decent and humane as a big firm can be. Similarly, some big firm lawyers have better values than others. I owe a lot to a partner who sacrificed hundreds of hours of his time and tens of thousands of dollars of income to act as a mentor to me and to many other young lawyers like me.
At the same time, you should not underestimate the likelihood that you will practice law unethically. It is true, for example, that not every lawyer knowingly and blatantly lies on his time sheets. But there is a reason why padding time sheets has been called “a silent epidemic.” Lots of lawyers pad time sheets in ways that are less obviously dishonest and more socially accepted. For example, a lawyer who needs to fly from Los Angeles to New York for one client may do the work of another client during the five hour flight, and bill both clients five hours--the first for five hours of travel, the second for five hours of work. Another common practice is for lawyers not to fill out their time sheets until the end of the day--or end of the week--or even end of the month. When a lawyer sits down on July 31 and tries to remember how much time she devoted to a client's work on July 9, it is only natural that she will underestimate the amount of time wasted on coffee breaks and personal phone calls and overestimate the amount of time devoted to the client's work.
Another widely accepted way of padding time sheets is to bill in minimum increments of, say, .25 hours or .30 hours. This permits the enterprising lawyer to engage in four two-minute phone calls and bill one hour. I cannot tell you how many times I have seen a lawyer bill a client fifteen minutes for the ninety seconds it took him to leave a voice mail message or to read a one paragraph deposition notice. I recall one occasion on which I sent a letter to an attorney who was representing my client in connection with a lawsuit filed in a distant state. I included in the same envelope copies of two other letters about the lawsuit that I had mailed to other people. I later learned that this lawyer had billed my client .90 hours for reading three letters that I had billed my client .50 hours for writing. How? He billed in .30 minimums and billed separately for each of the three letters he read, while I billed only for the time that I actually devoted to writing the letters. Many lawyers would admire this as clever and creative (if perhaps a bit aggressive) billing.
Likewise, not every big firm lawyer is a workaholic. This, too, is a matter of degree. I know big firm lawyers who make a good living and still eat dinner with their families most nights and spend most weekends away from the office. Unfortunately, though, these lawyers are almost invariably regarded by their partners as “deadwood” or as “semi-retired.” If you think I am exaggerating, I challenge you to find one big firm partner who lives a balanced life--that is, who does not work regularly on nights or weekends (at home or at the office)--and yet is well respected and considered successful by his peers. And I challenge you to find one big firm lawyer who lived anything like a balanced life as an associate and still made partner. I do not know of such a lawyer. Not one. In the last couple years, I have given speeches to various groups of lawyers and judges, and I have challenged my audiences to identify one such big firm lawyer for me. I have yet to be given a name. At best, such partners are rare. They may be nonexistent.
As I say, neither big firms nor big firm lawyers are all alike. But what you need to understand is that they are becoming more alike. . . .In other words, the distinctive cultures of individual big firms are influencing young lawyers less and less, while a generic big firm culture is influencing young lawyers more and more. That is why, no matter which big firm you join, there is a good chance that working at the firm will make you unhealthy, an even better chance that it will make you unhappy, and an almost 100% chance that it will make you unethical--at least if you accept that practicing law ethically includes practicing law in a manner that permits you to meet your responsibilities to someone besides your firm and clients.
IV. On Being a Happy, Healthy, and Ethical Lawyer
I now want to give you some advice--advice about how you can be a happy, healthy, and ethical member of an unhappy, unhealthy, and unethical profession. I want to give you both “big picture” advice and “little picture” advice.
A. “Big Picture” Advice
My “big picture” advice is simple: Don't get sucked into the game. Don't let money become the most important thing in your life. Don't fall into the trap of measuring your worth as an attorney--or as a human being--by how much money you make.
If you let your law firm or clients define success for you, they will define it in a way that is in their interest, not yours. It is important for them that your primary motivation be making money and that, no matter how much money you make, your primary motivation continue to be making money. If you end up as an unhappy or unethical attorney, money will most likely be at the root of your problem.
You cannot win the game. If you fall into the trap of measuring your worth by money, you will always feel inadequate. There will always be a firm paying more to its associates than yours. There will always be a firm with higher per-partner profits than yours. There will always be a lawyer at your firm making more money than you. No matter how hard you work, you will never be able to win the game. You will run faster and faster and faster, but there will always be a runner ahead of you, and the finish line will never quite come into view. That is why the game will make your clients and partners so rich and you so unhappy.
. . .
Research has shown that, with the exception of those living in poverty, people are almost always wrong in thinking that more money will make them happier. “(O)nce people are able to afford life's necessities, increasing levels of affluence matter surprisingly little.” When people experience a rise in income, they quickly adjust their desires and expectations accordingly--and conclude, once again, that more money will bring them more happiness. (Psychologists Philip Brickman and Donald Campbell aptly refer to this process as the “hedonic treadmill.”) Thus, when, as is true in law firms, more money almost always means more work, money not only fails to buy happiness, but it actually buys unhappiness. As one study of lawyers found, “after a certain time commitment (for most people, working more than 225 hours per month), even substantial income cannot negate the reduced quality of life. Because of this . . . the net impact of income on career satisfaction is negative.” Note that the reference is to working 225 hours per month, and not to billing 225 hours per month.
. . .
Law students and young lawyers have to stop seeing workaholism as “a badge of honor.” They have to stop talking with admiration about lawyers who bill 2500 hours per year. Attorneys whose lives are consumed with work--who devote endless hours to making themselves and their clients wealthy, at the expense of just about everything else in their lives--are not heroes. And that is true whether the lawyers are workaholic because they truly enjoy their work or because they crave wealth or because they are terribly insecure. At best, these attorneys are people with questionable priorities. At worst, they are immoral. There are certainly better lawyers after which to pattern your professional life.
Law students and young lawyers must consider the costs, as well as the benefits, of private practice--and particularly of private practice in a large firm. The benefits of big firm life--the high salaries, the plush offices, the conspicuous consumption--are paraded before young lawyers and are easy to understand. Any law student can divide $90,000 by twelve, subtract 40% for federal and state taxes, and fantasize about how she will spend $4,500 a month. By contrast, the costs of big firm life are not paraded before young lawyers and are not fully appreciated until a lawyer actually works at a large firm. But the costs are just as real as the benefits.
When you are at that barbeque at the senior partner's house, instead of wistfully telling yourself, “This is the life,” ask the senior partner some questions. (I'm speaking figuratively here; you probably don't want to actually ask these questions aloud.) Ask him how often he sees the gigantic house in which he lives. If he's honest, you will find out that he hasn't seen his home during daylight for almost four weeks, and that the only reason he came home at a decent hour tonight is to host the barbeque. Or ask him how often he's actually sat on that antique settee in that expensively decorated living room. You will find out that the room is only used for entertaining guests. Or ask him about his beautiful wife. You will find out that she is the third Mrs. Partner and that the lawyers for the first two Mrs. Partners are driving him crazy. Or ask him about those beautiful children whose photographs are everywhere. You will find out that they live with their mothers, not with him; that he never sees one of them because she hates his guts; and that he sees the other two only on holidays--that is, when he is not working on the holidays, which isn't often. And then ask him when is the last time he read a good book. Or watched television. Or took a walk. Or sat on his porch. Or cooked a meal. Or went fishing. Or did volunteer work. Or went to church. Or did anything that was not in some way related to work.
This is the best advice I can give you: Right now, while you are still in law school, make the commitment--not just in your head, but in your heart--that, although you are willing to work hard and you would like to make a comfortable living, you are not going to let money dominate your life to the exclusion of all else. And don't just structure your life around this negative; embrace a positive. Believe in something--care about something--so that when the culture of greed presses in on you from all sides, there will be something inside of you pushing back. Make the decision now that you will be the one who defines success for you--not your classmates, not big law firms, not clients of big law firms, not the National Law Journal. You will be a happier, healthier, and more ethical attorney as a result.
B. “Little Picture” Advice
I have four pieces of “little picture” advice for you.
1. Avoid Working in Large Law Firms--or in Firms That Act Like Large Law Firms
. . .
Then a curious thing happened. I arrived at Notre Dame and found that the substantial majority of my students wanted nothing so much as to join the very same big firms that my lawyer friends wanted so badly to leave. Before I had even taught my first class, students literally lined up outside my door to talk with me about getting big firm jobs. It called to mind the gridlock that often develops outside of open elevator doors: Inside the elevator were my lawyer friends, trying to push their way out, while outside the elevator were my students, trying to push their way in.
You should think very long and very hard before you try to push your way into that elevator--or before you waste a moment of your life regretting that you will not be able to get into that elevator. I fully understand how much pressure law students experience to go to big firms in big cities. At many law schools--particularly the more prestigious schools--going to work at a big firm is considered “the thing to do.” . . .It is big firms who come to campus to interview, big firms who invite students to fly out for splashy recruiting visits, big firms who get talked about in the student lounge, big firms who get written up in the American Lawyer. “The subliminal message of (law school) training is clear to most students: ‘Real’ lawyers work in large firms representing corporate and affluent clients.”
I also understand how easy it is to accept an offer from a big firm. I well remember graduating from law school being burdened by heavy student loan debt and being sick of living in “genteel poverty.” I recall how much I looked forward to making real money for the first time in my life--to buying furniture that was not constructed of particle board, to buying bestsellers before they came out in paperback, to buying clothing made of natural fibers. Moreover, like the majority of law school graduates, I had no family commitments, lots of energy, and absolutely no idea of what billing 2000 hours entailed. It was hard not to go to a big firm.
. . As you look for a job (or as you look for a second job), weigh carefully the benefits and costs of practicing law in a big firm. I have already discussed the costs at length. Allow me now to say a few words about the benefits. Everyone agrees that the main benefit of big firm practice is the money. But big firms always express the “hope( ) that new associates (will) choose to join a (big) firm for reasons other than money.” What reasons, exactly? Among those that are routinely given are the following:
Many students claim that they will receive better training at big firms than they will at medium or small firms, corporations, or government agencies. Big firms agree. . . At the big firm, by contrast to small firms or government,, an associate can take her time drafting interrogatories, either because the firm's well-heeled clients will not object to paying the extra cost, or because the well-heeled firm can afford to “write off” some of the associate's time.
There is something to this, but not much. Big firms do indeed get a lot of big cases in which tens or hundreds of millions of dollars are at stake, clients want to pull out all the stops, and associate training costs can easily be tucked away into huge legal bills. But these cases are the exceptions, and as the legal market gets increasingly competitive, these cases are getting increasingly exceptional.
More importantly, the boast of big firms misses a couple of points. First, the breadth of training is as important as its depth.. . . The life of an associate in a big firm litigation group is dominated by library research, writing briefs, drafting discovery requests, and responding to discovery requests. A typical junior associate will have little client contact, take few depositions, do little negotiating with opposing counsel, argue almost no motions or appeals, and try not a single case. The fact that big firms work on so many big cases in which so much is at stake--the very reason that associates can take the time to do things right--is also the reason associates do not get the chance to do things that matter. . .
Second, the most valuable training that any young lawyer receives comes from observing and being observed by more experienced attorneys. A lawyer learns how to nail down a slippery witness at a deposition or negotiate a deal with an unrealistic lawyer or calm a client who is upset about the size of a bill by watching more experienced lawyers do it, or by doing it and having more experienced lawyers give them feedback. This type of one-on-one mentoring is disappearing in big firms for a number of reasons, including the pressure to bill hours, the pressure to attract and retain clients, the pressure to minimize legal costs, the increasing size of law firms, and the increasing mobility of lawyers. Today “ training” by big firms too often means providing brown bag seminars or reimbursing tuition for continuing legal education; the kind of one-on-one training that is most effective is actually less available in big firms than in small firms and other settings. Indeed, one of the most common complaints of big firm associates is the lack of training and feedback they receive.
b. Interesting or Challenging Work
Working in a big firm will unquestionably give you the opportunity to do some interesting work that is not available elsewhere. Large firms work on a lot of big deals and complex cases; AT&T is not going to hire a four lawyer firm in Boise to defend that billion dollar antitrust case. When I was in practice, I worked on the National Football League antitrust case and, very briefly, on the Exxon Valdez oil spill litigation. I litigated several fascinating First Amendment issues for newspapers and religious organizations. I appeared on national television and on radio call-in shows. Working at a big firm made all of this possible. That said, it is nevertheless easy to overstate the degree to which the work that is available at big firms is more interesting or challenging than the work that is available elsewhere.
First, most big firm lawyers--especially big firm associates--spend the bulk of their professional lives working on run-of-the-mill matters. At the same time, many lawyers who do not work in big firms do fascinating work. When Michigan Law School surveyed members of its classes of 1990 and 1991 five years after graduation, it found that only 42% of those in private practice were “quite satisfied” with the intellectual challenge of their work, as compared to 55% of corporate counsel, 68% of government attorneys, and 72% of public interest lawyers. This should not be surprising. After all, who would you rather shadow for a day: a partner at Baker & McKenzie, an Assistant United States Attorney for the Northern District of Illinois, an in-house lawyer at Time-Warner, an attorney for the Sierra Club, or a successful solo practitioner specializing in employment law? The big firm partner would be fifth on my list.
Second, what is “interesting” or “challenging” is in the eye of the beholder. If your idea of challenging work is having the time to research a complicated issue of securities law, then you will find more interesting work in a big firm. But if your idea of challenging work is helping a client get divorced without losing her children or putting a diabolically clever criminal behind bars or helping a client realize her dream of opening a small business, then you are likely to be bored in a big firm. What many lawyers find most gratifying about practicing law is having ordinary people show up at their offices with problems, and then seeing the lives of those people improved in tangible ways as a direct result of their lawyer's efforts. Such lawyers will not find working in big firms to be either very interesting or very challenging.
If you go to a big firm, you will have to find a niche, and the bigger your firm, the smaller your niche is likely to be. If you become an expert in chartering banks, you will charter banks, day in and day out. If you are assigned to defend that billion dollar antitrust action against AT&T, you might spend six or seven years of your life working on that one case--and doing so as the fifth lawyer on a five lawyer team. Some lawyers like to be able to specialize; others do not. It depends on the lawyer. I developed a national reputation for defending religious organizations in clergy sexual misconduct cases. I worked on hundreds of those cases, sending out pretty much the same interrogatories, getting back pretty much the same answers, reading pretty much the same medical records, asking pretty much the same questions at depositions, filing pretty much the same summary judgment motions. I found the work interesting, but the fiftieth case was not as interesting as the first, and the hundredth case was not as interesting as the fiftieth.
In short, some people would undoubtedly find the work done by big firms interesting and challenging. But many other people would find the work far less interesting and far less challenging than work available elsewhere. Big firm work is not inherently superior to other work.
Some students want to go to big firms because they want to be surrounded by extremely smart and able lawyers. They see big firms as the place where a young lawyer can be part of an outstanding team, helping and being helped by the best and brightest in the profession. One student told me that he wanted to work at a big firm instead of a small firm for the same reason that any baseball player would rather play for the New York Yankees than the Montreal Expos.
Again, there is something to this. At a big firm you will be surrounded by attorneys who got good grades at good schools. Most of them will even be good lawyers. And it is indeed nice to walk down the hall and talk to the leading tax lawyer in town or to walk farther down the hall and give an assignment to a young associate fresh off a Second Circuit clerkship. I am as critical of big firms as anyone, but I don't think it can be denied that, on average, big firm lawyers are more talented and do better work than lawyers in other practice settings. . ..
Again, though, there is another side to this story, one that substantially undercuts this advantage. For one thing, as I just said, outstanding lawyers work in every part of the legal profession. No matter what you do--no matter the setting in which you work--you will meet terrific attorneys. They will help you, and you will help them, and they will refer work to you, and you will refer work to them. Even if you become a solo practitioner, you will, over time, form your own “big firm” of friends and colleagues in the legal profession.
In addition, being part of a law firm with outstanding lawyers does not mean much if those lawyers don't know you or are indifferent to you. Many big firm partners don't even know their partners, much less the dozens of “here today, gone tomorrow” associates. It is even worse if your colleagues are affirmatively seeking to undercut you. Partners at large firms responding to a recent survey reported that just over 58% of their partners were “supportive,” while roughly 33% were “competitive” and 10% “undermining.” The National Law Journal, which conducted the survey, reported that the pressure to attract business was “caus(ing) partners to root for their comrades to stumble.” Things aren't much better at the associate level. “The practice of ‘leveraging’ associates creates competition, stress and a loss of institutional loyalty and sense of belonging. Colleagues are viewed as competitors for partnership.” . . .
d. Keeping Doors Open
Sometimes students, when resisting entreaties to consider alternatives to big firms, say that they are not sure what they want to do, but figure that if they go to a big firm, they will be keeping their doors open, whereas if they go elsewhere, big firms and other elite employers will lose interest in them. I do not know whether this reasoning is sound, but I suspect that it is not.
Without question, lawyers leaving big firms generally have more options available to them--including the possibility of going to other big firms--than lawyers leaving small firms or other employers. But remember that lawyers leaving big firms generally had more options available to them in the first place. Lawyers hired by big firms tend to have better paper credentials than lawyers hired by small firms, so of course they are going to be more mobile when they look for a second job. That doesn't mean that the lawyers are more mobile because they worked in a big firm.
. . .
This raises an important point: Although those leaving big firms always seem to get new jobs, they may have less mobility than is widely assumed. My firm in Minneapolis got hundreds of resumés from attorneys who had spent a few years in big firms in big cities. We rarely interviewed them and almost never hired them. These people generally had not learned anything that would help our firm much. They had often spent several years in the library or reviewing documents or working on one gigantic lawsuit. At the same time, these people generally brought a lot of baggage. They were accustomed to making more money than we could pay. They were accustomed to approaching work in a way that most of our clients would not accept. And they were accustomed to a culture that was inimical to ours. On balance, we almost always preferred hiring lawyers out of law school to hiring associates laterally from other big firms.
And that is my point: When it comes right down to it, there is one and only one reason to go to a big firm: money. . . .“Thus, if seeking wealth is . . . the sole driving force in (your) life, and working 60 to 70 hours a week is . . . (your) perception of the good life,” then by all means go to work for a big firm. But do not go to work for a big firm because of the “benefits,” such as the training, challenging work, collegiality, or increased mobility. Those benefits do not exist.
Also, do not go to a big firm for some of the other reasons given by students. For example, students often say that they must go to a big firm because their student loan debt leaves them no choice. This may be true for some. I have had students with four or five children, an unemployed spouse, and $60,000 or more in debts. For these students, big firm salaries may indeed be necessary. But the number of students whose economic circumstances compel them to take big firm jobs is still substantially smaller than the number of students who claim that their economic circumstances compel them to take big firm jobs.
. . . So let us take a typical student who fears starvation if he does not get a big firm job--say, an unmarried student who graduates with $50,000 in student loan debt. If we assume that this student is being charged 8% interest (compounded annually) and that he must repay his loans within fifteen years, that student must make about $5,840 in loan payments each year, or about $487 per month. At present, there are thousands of entry-level positions with corporations, as well as with federal, state, and local governments, that pay $40,000 to $60,000 per year. A single lawyer making $50,000 per year would take home (after taxes) roughly $36,000--or about $3,000 per month. After making his loan payment of $487, the lawyer would be left with about $2,500 on which to live for a month. Even if this lawyer goes fifteen years without a raise and never refinances his loan, the amount that he would be able to spend each month after making his loan payment would still almost equal the median gross income for American men and substantially exceed the median gross income for American women. A lawyer who is spending more money than most Americans are earning will not have to live in poverty.
I have already alluded to a second justification given by students for going to big firms. Many students insist that they really want to practice law in Seattle or Phoenix or Miami--or really want to be a prosecutor or public interest lawyer--but first are going to a big New York or Washington firm to get training or to make enough money to pay off some loans. Then, they say, after three or four years of big firm practice, they will move to the city in which they really want to practice and take the job that they really want to take.
This is self-delusion. First, as I have explained, the vaunted training of big firms does not exist. Second, it is not nearly as easy to walk away from a big firm as these students suppose. Inertia is a powerful force, and lawyers quickly get accustomed to big firm salaries. Young lawyers in big firms are more likely to be pushed out than to walk out. And third, when it is time for big firm associates to leave, it is not nearly as easy to find satisfactory work as students seem to think. True, big firm associates almost always find a new job somewhere, but I doubt that my firm was the only employer that perceived former big firm associates as offering little helpful experience and much unhelpful baggage.
One final thing that students going to big firms sometimes say is that, although they are going to a big firm, they firmly intend to resist big firm culture. In fact, they intend to work to change their big firms from within, and to live balanced lives, no matter what their firms say. All of this is well and good, and if you end up at a large law firm someday, you should indeed advocate reform. But it is a lot harder to resist big firm culture than students think. My own life provides a good illustration.
I could have had my pick of big city, big firm jobs in 1987, as I was completing a Supreme Court clerkship. In fact, many big firms were supplementing their usual astronomical salaries with bonuses for Supreme Court clerks. I decided to turn down the big money and return home to Minnesota, where I joined a large firm with a reputation for treating people well. Within a couple of years, I was married, and our first child was on the way.
I had every intention of leading a balanced life. And, by New York or Washington standards, I suppose I did. By anyone else's standards, I did not. I worked three or four nights and one or two weekend days every week. When I was preparing for a trial or arbitration or appellate argument, I worked almost around the clock. I put hundreds of hours into business development, and, within three years or so, had created a self-sustaining practice. I traveled constantly. What I remember about the times my children first talked or walked or went to the potty was the hotel room in which I was sitting when my wife told me about the event over the phone. I was in Seattle when my grandmother died. I was in Pittsburgh when the worst snowstorm of the century trapped my family in our house for two days. I was in Williamsburg when my wife learned that our third child, with whom she was four months pregnant, had Down Syndrome. I failed miserably in my resolve to lead a balanced life, and neither my family nor I will ever be able to get back what we lost as a result.
You may do better than I did, but don't count on it. No matter how pure your intentions--no matter how firm your resolve--when you go to work at a big firm, the culture will seep in. I grew up in a lower middle class neighborhood. I literally never met anyone who could be characterized as wealthy. I almost never talked about money or thought about money. That all changed when I started practicing law, despite my best intentions. Slowly, imperceptibly, the things that I cared about and the way that I thought about others and the way that I thought about myself changed. I got sucked into playing the game, and even today, three years after leaving the big firm, I still find myself playing the game at times. If you go to a big firm intending to stay for only a couple years, the job you choose may be temporary, but the way it affects you may not.
2. Seek Alternatives to Private Practice--and Especially to Big Firm Practice
As you look for your first job, do not restrict yourself to private practice. There are tens of thousands of jobs for attorneys in the government, in corporations, and in the not-for-profit sector. A lot of these jobs provide fascinating work, minimal stress, predictable hours, and decent salaries-- albeit not the huge salaries paid by big firms. Most importantly, many of these jobs permit you to have a life outside of work. “Time for family and self is a real problem for lawyers in private practice. Far fewer lawyers in corporate counsel and government settings have insufficient time.”
Consider the results of the Michigan Law School survey. Members of the classes of 1990 and 1991 were asked about their satisfaction with several aspects of their lives five years after graduation. The classes were divided into four groups--government attorneys, attorneys working for legal services organizations or other public interest employers, private practitioners, and attorneys in corporate legal departments--and the satisfaction levels of each group were reported as follows:
The results are telling: Attorneys working in private practice were dead last in career satisfaction, dead last in being satisfied with the intellectual challenge of their work, dead last in being satisfied with the balance of work and family, and dead last in regarding their work as valuable to society. Private practitioners came in first only in being satisfied with their incomes--but, even with respect to income, only slightly more than half of those in private practice were “quite satisfied.” Over the past sixteen years, Michigan Law School has found that the career satisfaction of its graduates in private practice has dropped sharply, while the career satisfaction of its graduates working for the government or for public interest organizations has risen sharply.
If you want to practice law in the private sector--as opposed to the government, public interest, or corporate sectors--I recommend that you look at small firms. Not all small firms are alike, of course. Some small firms are structured like big firms; associates are worked to death so partners can profit handsomely. Even small firms that do not act like big firms have their own problems. However, small firms tend to have several advantages over big firms.
First, small firms are small, so you will be closer to your colleagues. You will have a better chance of getting the kind of one-on-one training that is disappearing in big firms. Second, small firms “leverage” associates less, meaning less competition among associates and a greater chance of making partner. Third, small firms are less rigidly structured. They can permit lawyers to work more flexible schedules, or to take longer than seven or eight years to make partner, or to choose not to make partner at all. Fourth, the attrition rate of associates in small firms is smaller than the attrition rate of associates in large firms; young lawyers stick around longer at small firms. Fifth, small firms have more freedom to choose their clients and their cases. If a small firm wishes to do so, it can agree to write a will for a farmer in exchange for a supply of fresh vegetables or to incorporate a gas station in return for free car repairs. Sixth, young lawyers at small firms get more responsibility and get it quicker. Seventh, beginning with the first day of work, small firm lawyers have extensive contact with clients. Eighth, small firms demand fewer billable hours; as a result, lawyers in small firms live more balanced lives. And ninth, and not surprisingly, lawyers at small firms tend to be happier with their careers.
Without question, the attorneys I knew who seemed to be the happiest, who seemed to have the most balanced lives, and who seemed to have the most interesting, satisfying practices were those practicing in small towns (in either small firms or--another option for you--as solo practitioners). But even if you are intent on working in a major city, make an effort to check out small firms. There are many three-to ten-person firms in big cities founded by people who left the rat race--who decided that they were willing to give up some money in order to get some control over their lives. And consider working for the government or for public interest groups. The passion of government and public interest attorneys for their work is unmatched, and the “baptism by fire” that many of these attorneys experience provides better training than brown bag sessions in big firm conference rooms.
Identifying job opportunities with small firms, the government, and public interest groups is difficult, as they do not interview on law school campuses or advertise in major trade journals. Also, unlike big firms, they usually cannot hire a year in advance. It takes a lot of guts to hold out for a small firm, government, or public interest job during the third year of law school, as one of your friends after another signs up with a big firm. But the rewards are worth the effort.
3. If You Go to a Big Firm, Make a Smart Choice
As I have said, big firms are not alike. Some are better than others. If, despite my advice, you decide to go to a big firm, then at least be smart in choosing among big firms. In that way, you will help yourself and you will help the profession.
. . .
b. Helping Yourself
Shortly before the end of each school year, I give a presentation to the third year Legal Ethics classes at Notre Dame. In that presentation, I try to communicate the realities of big firm practice in much the same way as I've tried to do in this Article. Invariably, a student will come up to me after class and say, “The big firm at which I'm going to work is not like the ones you describe.” When I reply, “How do you know?,” the student cites the firm's recruiting materials or her interviews with the firm or her three months experience at the firm as a summer associate.
Understand this: Firms lie. They lie in their brochures. They lie during interviews. They lie to their summer associates. To be sure, there are lies and then there are lies. Telling a law student that the firm expects associates to bill 1800 hours per year when, in fact, the firm fires associates who do not bill 2200 hours is a direct, no-doubt-about-it lie. Giving summer associates light workloads, channeling the most interesting projects to them, assigning them to work for the most likeable partners, and smothering them with free meals and social outings is an indirect lie. Either way, though, the firm is holding itself out to be something that it is not.
Law firms have to sell themselves to bright law students, and, like any seller of a product, they work hard to make themselves look good--sometimes at the expense of the truth. Much of what a law firm says “are empty words with no relation to what actually happens at the firm.” Yet “law students and associates have often been surprisingly unwilling to look behind the big salaries and empty promises that law firm recruiters . . . have thrown at them with increasing vigor.” You should shop for a law firm in the same way that you should shop for an apartment or a car or a major appliance. You should first research the product, and then you should ask hard questions of the person trying to sell the product to you.
Before you accept an offer from a firm--indeed, before you even interview at a firm--research the firm thoroughly. Use the American Lawyer or the National Law Journal to discover the profits per partner at the firm. Roughly speaking, the lower the profits per partner, the better the working conditions. In some ways, the optimal big firm is a firm with high prestige and low profits per partner. At such a firm, big firm benefits will likely be accompanied by a minimum of big firm exploitation. You will find that these optimal big firms tend to be located in cities like Portland and Denver and Milwaukee, rather than New York and Washington and Chicago.
If you are interested in a big firm in, say, St. Louis, then you should talk with several lawyers in St. Louis. Talk not only with lawyers working in other big St. Louis firms, but also with lawyers in small firms, in corporations, and in government. Almost every lawyer to whom you will speak will either know someone at the firm or know someone who knows someone at the firm. A particularly good source of information will be lawyers who recently left the firm. These lawyers are easily identified through Martindale-Hubbell--or, for that matter, by simply asking around. Obviously, an attorney whom you call out of the blue is less likely to be candid with you than an attorney to whom you have been introduced, so “network.” Call an attorney you know, and ask her if she would be willing to introduce you to two other attorneys. Then make the same request of those two attorneys, and of the attorneys to whom they introduce you. Before long, you will have a pretty good picture of the firm.
Of course, you need to be careful to take what you are told about the firm with a grain of salt. What you are told may reflect some envy of the firm, or an attempt to recruit you away from the firm, or resentment at not being hired by or at being forced out of the firm. The more specific you can make people be, the better able you will be to judge their opinions. A lawyer who tells you only that he has heard that “people are unhappy” at the firm has not told you nearly as much as a lawyer who says, “The husband of one of our legal assistants works there. She told me that she has had dinner with her husband only twice in the past month. She said that he billed 2500 hours last year and is on pace to bill 3000 this year.”
When you interview with the firm, do not passively accept platitudes. Every big firm claims that it is different. Every big firm denies that it is a sweatshop. Every big firm insists that, although its attorneys work hard, they lead balanced lives. This is almost always false. It has to be. There is no free lunch. Someone has to pay for your $80,000 starting salary. And someone has to pay for that office space in the city's most prestigious skyscraper. And someone has to pay for the oak paneling that lines the conference rooms. You cannot get big firm benefits without paying the big firm price. A firm that tells you otherwise is lying.
For a big firm to be truly different, its partners would have to be willing to take less money, and this is something that big firm partners have proven singularly unwilling to do. Marc Galanter and Thomas Palay have described why, in a sense, big firms cannot value anything except money: “Money is not all that partners want,” Galanter and Palay write.
But as firms get bigger, securing and monitoring agreement about the priority ordering, the value, and the mix of “goods” they want as their return from practice becomes ever more complex. Since “money” is high (even if not first) on everyone's scale, it is almost always possible to get agreement on more money over any other competing good. As firms get larger, agreement becomes more difficult. This is especially so when firms at the same time become more diverse in terms of gender, ethnicity, class origin, and educational background.
As a result of this phenomenon, “big-firm lawyers insist on taking the gains of firm growth in the form of more money income rather than as sabbaticals, time for child-care, political involvement, greater work satisfaction, or whatever.” Presumably, as the culture that most influences a young lawyer shifts from the distinctive culture of her individual law firm (which is created by a couple hundred attorneys) to a generic “big firm” culture (which is created by many thousands of attorneys), the trend toward valuing nothing but material wealth will only accelerate.
Even those within the legal profession who are most concerned about the well-being of lawyers seem incapable of suggesting to their fellow attorneys that maybe, just maybe, a big part of the solution to the profession's problems lies in being satisfied with more modest incomes. Here are a couple examples of what I mean:
In 1991, in response to growing evidence of the unhappiness and unhealthiness of the legal profession, the ABA convened an urgent conference of leading lawyers from across the United States. The conference was dramatically (if long-windedly) titled, At the Breaking Point: A National Conference on the Emerging Crisis in the Quality of Lawyers' Health and Lives--Its Impact on Law Firms and Client Services. The lawyers attending the conference were concerned and knowledgeable about the well-being of lawyers, and yet even they could not quite come to grips with the fact that lawyers are unhappy and unhealthy in large part because they have unreasonable expectations about money. To the contrary, much of the conference's report argued (unconvincingly, in my view) that lawyers could use “sound management” and “value billing and value compensation” to make more money without working longer hours. (“Sound management” is to a law firm consultant what getting rid of “waste, fraud, and abuse” is to a politician.)
The more recent Boston Bar Association Task Force on Professional Fulfillment was similarly reluctant to acknowledge reality. The Large Law Firms Partners Subcommittee, after listing three “fulfilling aspects” of big firm practice, identified ten “obstacles to professional fulfillment” --most of which could be eliminated or reduced if big firm partners were willing to make less money. And yet the closest the Task Force came to acknowledging that fact was its hesitant suggestion in the sixth of its six recommendations that the income of big firm partners may have to grow more slowly: “The Task Force recommends that . . . large law firms encourage partners to manage their expectations and to recognize that the annual percentage increases in compensation witnessed in the past few years will inevitably moderate and that monetary rewards alone are not what is meant by professional fulfillment.” . . .
Against this background, you should be skeptical of any claim by any big firm that it is “different.” Ask tough questions of the lawyers you meet. When you are at a recruiting dinner with a couple of lawyers from the firm, don't just ask them, “So, do you folks have any kind of life outside of work?” They will chuckle, say “sure,” and ask if you want more wine. Instead, ask them how many times last week they had dinner with their families. And then ask them what time dinner was served. And then ask them whether they worked after dinner. Ask them what their favorite television show is or what is the last good movie they saw. If they respond, respectively, Welcome Back Kotter and Saturday Night Fever, you will know something's wrong. Ask them about their last vacation. Where did they go? How long did they stay? How many faxes did they send or receive while on vacation? Get some sense of what their lives are like.
Similarly, when you are interviewing at the firm, ask tough questions of the lawyers you meet. When a lawyer tells you that she has a lot of client contact, ask her what that means. There is a big difference between sending an occasional letter to the assistant general counsel and flying to client headquarters to engage in all day strategy sessions with the officers. When a lawyer tells you that he gets a lot of interesting assignments, ask for examples. You may be surprised at what passes for “interesting” at the firm. And when a lawyer tells you that associates are happy at the firm, ask for specifics. How many associates were hired five years ago? How many of those associates remain at the firm? Who were the last three associates to leave the firm? What are they doing now? How can you contact them?
. . .
You have to be careful in cross-examining prospective employers in the way I suggest--and the weaker your academic record, the more careful you have to be. You do not want prospective employers to think that you are lazy. Questions about workloads and billable hours and recently departed associates should be mixed in with many other questions about other aspects of firm life. Be polite, not accusatory. Use humor--unless you don't have a good sense of humor, in which case you should go back to being polite, not accusatory. Save the toughest questions for after you get an offer. But ask the questions sometime, in some way, of someone.
By being a smart consumer, you have a chance of distinguishing the good big firms from the bad big firms. Do not expect too much, though. As I have explained at length, big firms just are not set up to give their lawyers a chance to live full lives. The only people who can make big firm money without working big firm hours are the most senior partners who are living off the skim. In the end, big firm life comes down to spending eight years or so being exploited a lot so that you can spend another eight years or so being exploited a little so that you can spend another eight years or so not being exploited so that you can finish your career exploiting others.
4. Develop the Habit of Acting Ethically
As I have explained, whether you practice law ethically will depend primarily upon the hundreds of mundane things that you will do almost unthinkingly every day. To behave ethically, day in and day out, you need to be in the habit of doing so. Developing the habit of acting ethically is no different from developing the habit of putting on your seatbelt or cracking your knuckles: You have to do it a lot. If you are going to practice law ethically, you need to decide now, while you are still in law school, what kind of lawyer you want to be, and then act as that kind of lawyer would act. Always. Everywhere. In big things and small. Do not take that first step toward being an unethical lawyer. I'm telling you--I'm promising you--that sometime during your first couple years of practice, you will be sitting at your desk late at night with your pen poised over your time sheet, and you will be tempted to pad your hours. Padding time sheets is “the perfect crime”; it is profitable for you and it is profitable for the firm and there is virtually no chance that you will get caught. The only thing that will stop you from padding your time sheets is your own integrity.
Do not pad your time sheets--even once. And do not tell lies to partners or clients or opposing counsel. And do not misrepresent legal authority to judges. And do not break your promises. And do not do anything else that is contrary to the values you now hold. And finally, when you screw up--as I did, as every lawyer does--pick yourself up, dust yourself off, and try that much harder to develop the habit of acting ethically.