THE DANGEROUS MILLION-DOLLAR DISTRACTION

A new study, renamed “The Economic Value of a Law Degree,” is the latest effort to defend a troubled model of legal education. It’s especially disheartening because, before joining Seton Hall University School of Law in 2010, co-author Michael Simkovic was an associate at Davis, Polk & Wardwell in 2009-2010. At some level, he must be aware of the difficulties confronting so many young law graduates.

Nevertheless, Simkovic and co-author Frank McIntyre (Rutgers Business School) “reject the claim that law degrees are priced above their value” (p. 41) and “estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000 (p. 1).”

As the academic debate over data and methodology continues, some professors are already relying on the study to resist necessary change. That’s bad enough. But my concern is for the most vulnerable potential victims caught in the crosshairs of the “Million Dollar Law Degree” media headlines taken from the article’s original title: today’s prelaw students. If they rely on an incomplete understanding of the study’s limitations to reinforce their own confirmation bias in favor of pursuing a legal career primarily for financial reasons, they make a serious mistake.

The naysayers are wrong?

The study targets respected academics (including Professors Herwig Schlunk, Bill Henderson, Jim Chen, Brian Tamanaha, and Paul Campos), along with “scambloggers” and anyone else arguing that legal education has become too expensive while failing to respond to a transformation of the profession that is reducing the value of young lawyers in particular. Professors Campos and Tamanaha have begun responses that are continuing. [UPDATE: Tamanaha's latest is here.] Professor Brian Leiter’s blog has become the vehicle for Simkovic’s answers.

One obvious problem with touting the $1 million average is that, for the bimodal distribution of lawyer incomes, any average is meaningless. Professor Stephen Diamond offered a rebuttal to Campos that Simkovic endorsed, calculating the net lifetime premium at the median (midpoint) to be $330,000 over a 40-year career. That might be closer to reality. But a degree that returns, at most, a lifetime average of $687 a month in added value for half of the people who get it isn’t much of an attention-getter. As noted below, even that number depends on some questionable assumptions and, at the 25th percentile, the economic prospects are far bleaker.

Causation

In the haze of statistical jargon and the illusory objectivity of numbers, it’s tempting to forget a fundamental point: statisticians investigate correlations. Even sophisticated regression analysis can’t prove causation. Every morning, the rooster crows when the sun rises. After isolating all observable variables, that correlation may be nearly perfect, but the crowing of the rooster still doesn’t cause the sun to rise.

Statistical inference can be a useful tool. But it can’t bridge the many leaps of faith involved in taking a non-random sample of 1,382 JD-degree holders – the most recent of whom graduated in 2008 (before the Great Recession) and 40 percent of whom have jobs that don’t require a JD — and concluding that it should guide the future of legal education in a 1.5 million-member profession. (p. 13 and n. 31)

Caveats

Simkovic and McIntyre provide necessary caveats throughout their analysis, but potential prelaw students (and their parents) aren’t likely to focus on them. For example, with respect to JD-degree holders with jobs that don’t require a JD, they “suggest” causation between the degree and lifetime income premiums, but admit they can’t prove it. (p. 25)

Likewise, they use recessions in the late 1990s and early 2000s as proxies for the impact of the Great Recession on current law graduates (compared to bachelor’s degree holders) (p. 32), minimizing the importance of recent seismic shifts in the legal profession and the impact on students graduating after 2008. (Simkovic graduated in 2007.)

This brings to mind the joke about a law professor who offers his rescue plan to others stranded on a deserted island: “First, assume we have a boat…” The study finesses that issue with this qualification: “[P]ast performance does not guarantee future returns. The return to a law degree in 2020 can only be known in 2020.” (p. 38)

Similarly, the results assume: 1) total tuition expense of $90,000 (presumably including the present value cost of law school loan interest repayments; otherwise, that number is too low and the resulting calculated premium too high); 2) student earnings during law school of $24,000; 3) graduation from law school at age 25 (no break after college); and 4) employment that continues to age 65. (pp. 39-41) More pessimistic assumptions would reduce the study’s calculated premiums at all income levels. At some point below even the Simkovic-McIntyre 25th percentile, there’s no lifetime premium for a JD.

Conclusions

After a long list of their study’s “important limitations” — including my personal favorite, the inability to “determine the earnings premium associated with attending any specific law school” — the authors conclude: “In sum, a law degree is often a good investment.” (p. 50) I agree. The more important inquiry is: When isn’t it?

In his Simkovic-endorsed defense of the study, Professor Diamond offers a basic management principle: any positive net present value means the project should be a go. But attending law school isn’t an aggregate “project.” It’s an individual undertaking for each student. After they graduate, half of them will remain below the median income level — some of them far below it.

The authors dismiss Bureau of Labor Statistics employment projections (pp. 6-7), but it’s difficult to ignore current reality. In 2012 alone, law schools graduated 46,000 new attorneys. For that class, nine months out only 10 percent of law schools (20 out of 200) had long-term full-time JD-required job placement rates exceeding 75 percent. The overall JD-job placement average for all law schools was 56 percent.

Some of the remaining 44 percent will do other things because they have no realistic opportunity for legal careers. Financially, it could even turn out okay for a lot of them. (In that respect, you have to admire the boldness of the authors’ footnote 8, citing the percentage of Senators and CEOs with JDs.)

But with better information about their actual prospects as practicing attorneys, how many would have skipped their three-year investments in a JD and taken the alternative path at the outset? That’s the question that the Simkovic/McIntyre study doesn’t pose and that every prospective law student should consider.

More elephants in the room 

Notwithstanding the economic benefits of a JD that many graduates certainly enjoy, attorney career dissatisfaction remains pervasive, even among the “winners” who land the most lucrative big firm jobs. That leads to the most important point of all. Anyone desiring to become an attorney shouldn’t do it for the money. Even the Simkovic/Mcntyre study with its many questionable assumptions proves that for thousands of graduates every year the money will never be there.

But the authors are undoubtedly correct about one thing: “The data suggests [sic] that law school loans are profitable for the federal government.” (p. 46) Law schools like them, too.

It doesn’t take a multiple regression analysis to see the problems confronting the legal profession — but it can be used to obscure them.

BONUS TIME – 2012

It’s always interesting when two respected legal writers approach the same story in different ways. That happened in the coverage of recently announced associate bonuses.

Ashby Jones at the Wall Street Journal penned an article in the November 27 print edition of the paper that ran under this headline:

“Cravath Sends Cheer — Law Firm Lifts Bonuses for Some Associates as Much as 60%”

As always, Jones accurately reports what is true, namely, that Cravath, Swaine & Moore led this year’s associate bonus announcements with an increase over last year’s base bonus levels. Five paragraphs in, he acknowledges that this significant bump still leaves associates well below the 2007 pay scale. The highest associate bonuses this year are $60,000, compared to $110,000 for combined regular and special bonuses in 2007.

Meanwhile, at the New York Times…

On the same day that Ashby Jones’s article ran in the WSJ, Peter Lattman at the New York Times was a bit more circumspect. In that paper’s print edition, the bold line that ran in the middle of the story reads:

“[Cravath's] year-end awards set the bar for others, and the payouts are up a bit in 2012.”

Like Jones, Lattman observes that base bonus amounts are substantially higher than previously. But he correctly notes that “when spring bonuses are added to the equation, there has been little increase for Cravath’s associates over the last two years. The law firm did not award spring bonuses in 2012, but last year paid its associates a small stipend in addition to a year-end award. When 2011′s spring bonuses and year-end bonuses are added together, total bonus compensation actually exceeds this year’s level.”

Both Jones and Lattman report that Cravath had $3.1 million in average partner profits for 2011. For perspective, that’s slightly above the $3.05 average for 2006, and not all that far from the $3.3 million all-time high in 2007. Needless to say, associate bonuses haven’t enjoyed a similar recovery. But depending on what happens in the spring, they still could, which leads to a final point.

Who’s right?

The answer is Elie Mystal over at Above the Law. Mystal observes that spring bonuses more properly belong in the analysis of total compensation for the immediately preceding calendar year. That is, a bonus paid in early 2011 is really compensation for 2010.

The analysis is straightforward. Big law firms waiting for more complete information on how the fiscal year will end preserve flexibility by lowballing the November bonus numbers. Evidently, Cravath concluded that its $3.1 million average partner profits for 2011 were inadequate to justify any significant spring bonus for associates in early 2012.

The fate of the “special” bonus

The question now is whether spring bonuses are gone forever. After all, they first appeared as “special bonuses” — meaning that they came with this implied caveat: don’t build those dollars into next year’s expectations. Of course, that message has landed on deaf ears. But it gives firm leaders a way to convince themselves that it’s fair to leave associate compensation far below 2007 levels, even though average partner profits have recovered almost completely to those lofty heights. Indeed, some firms have even bested their pre-recession records.

In all of this, two things are working against associates who dream of a return to the good old days (of 2007). First, the glut of attorneys grows as the demand for new associates shrinks. Second, most law firm leaders are dealing with a revolution of rising expectations among senior equity partners. The potential loss of a rainmaker strikes fear in the hearts of many firm leaders.

But here’s a reason to hope. True visionaries seeking long-term institutional stability let such troublemakers walk. They promote cultural values that transcend the impact on the current year’s income statement. They let resulting gains in client service and attorney morale produce ample financial and non-financial rewards for all.

And all of this reveals itself in how partners at the top of a firm treat associates at the bottom — a place where too many seem to have forgotten that they themselves once stood.

BAD NUMBERS REVEALING WORSE TRENDS

By now, everyone interested in the job prospects for new lawyers has seen two recent headline items:

– Nine months after graduation, only 55 percent of the class of 2011 had full-time, long-term jobs requiring a legal degree, and

– The median starting salary for all employed attorneys in the class of 2011 has dropped to $60,000 — from $72,000 only two years earlier.

The New York City Bar Association just formed a task force to wring its hands over the lawyer oversupply crisis — as if it were something new. A closer analysis of the salary data reveals several underlying realities that are even worse than that declining number suggests.

Digging deeper

For example, NALP’s press release about the median salary number came with this concluding sentence: “Salary information was reported for 65% of graduates reported to be working full-time in a position lasting at least one year.” If that means 35 percent of such workers with full-time jobs didn’t report their salary information, then the published median probably overstates the actual number — perhaps by a lot.

more detailed breakdown reveals that for the class of 2011, the $40,000 to $65,000 category accounted for 52 percent of all reported salaries. Compare that to the class of 2009: Two years ago, starting salaries of between $40,000 and $65,000 accounted for 42 percent of reported salaries. Today, more new lawyers are working for less money, but they’re still the lucky ones — law graduates who got full-time jobs.

The trend in law firm starting salaries is more dramatic: The median starting salary for law firms of all sizes dropped from $130,000 in 2009 to $85,000 in 2011.

Whither big law?

Two more bits of information offer some insight into what’s happening in the biggest law firms:

Only eight percent of 2011 graduates landed jobs in big firms of more than 250 attorneys.

– Entry level jobs that paid $160,000 a year accounted for only 16 percent of reported salaries in 2011. Even for the class of 2009 — graduating into the teeth of the Great Recession and widespread big firm layoffs — the $160,000 category accounted for 25 percent of reported salaries. And the 2009 denominator was bigger: 19,513 reported salaries v. 18,630 salaries in 2011. Importantly, the decline hasn’t resulted because big law firms have reduced their starting salaries; most haven’t.

Rather, as NALP’s Executive Director James Leipold explains, “[T]he downward shift in salaries is not, for the most part, the result of individual legal employers paying new graduates less than they paid them in the past. Although some firms have lowered their starting salaries, and we are starting to see a measurable impact from lower-paying non-partnership track lawyer jobs at large law firms, aggregate starting salaries have fallen over the last two years because graduates found fewer jobs with the highest-paying large law firms and many more jobs with lower-paying small law firms.”

Big law firms’ self-inflicted wounds

Surely, things are better than they were during the cataclysmic days of early 2009; equity partner profits have returned to pre-2008 peaks. So what’s happening? One answer is that large firms are increasing the ranks of non-equity partners. According to The American Lawyerthe number of non-equity partners grew by almost six percent in 2011. They now comprise fifteen percent of all attorneys in Am Law 100 firms.

As The American Lawyer’s editor in chief Robin Sparkman explains, “Some firms deequitized partners and pushed them into this holding pen. Other firms expanded the practice of moving potential equity partners (either homegrown or laterals) into this category — both to keep their PPP high and to give the lawyers a little breathing room before they face the rainmaking pressures of equity partnership.” I’d add one more category: some firms have increased the ranks of permanent non-equity partners.

Perilous short-termism

Edwin Reeser and Patrick McKenna have described how non-equity partners are profit centers. Keeping them around longer makes more money for equity partners, but creating that non-equity partner bubble comes at significant institutional costs. One is blockage.

For any firm, there’s only so much work to go around. Ultimately, the burgeoning ranks of non-equity partners has an adverse trickle down impact on those seeking to enter the big firm pipeline. Whether new graduates should have that aspiration is a different question, but the larger implications for the affected firms are clear: There’s less room for today’s brightest young law graduates.

Some leaders have decided that maximizing current equity partner profits is more important than securing, training and developing a future generation of talent for their law firms. Sooner than they realize, their firms will suffer the tragic consequences of that mistake.

BONUS TIME — AND ANOTHER UNFORTUNATE COMMENT AWARD

Above the Law’s David Lat wins my Unfortunate Comment Award with this assessment of Cravath, Swaine & Moore’s recent 2011 bonus announcement:

“My own take: these amounts — which are the same as the 2010 and 2009 bonus scales at CSM, except for the most-senior associates — are fair. The past three years — 2009, 2010, and 2011 — have been fine for Biglaw, but not amazing. To the extent that firms are treading water a bit, it’s reasonable for them to keep associate compensation at the same levels.”

“Treading water a bit”?

Let’s start with the suggestion that “the past three years have been fine for Biglaw, but not amazing.” According to The American Lawyer, Cravath’s 2008 average equity partner profits were $2.5 million — admittedly a sharp decline from 2007. But it’s still pretty good and, since then, equity partner profit trees have resumed their growth to the sky.

As the economy struggled, Cravath’s average partner profits increased to $2.7 million in 2009 and to $3.17 million in 2010, according to the Am Law 100 surveys. That’s not “treading water.” It’s returning to 2007 profit levels — the height of “amazing” boom years that most observers had declared gone forever. Watch for 2011 profits to be even higher.

It’s fair [and] reasonable to keep associate compensation at the same levels as 2009 and 2010″

If Lat’s comparative baseline is the American labor force generally, his view of fairness has superficial appeal. To most people, Cravath’s bonuses atop base salaries starting at $160,000 are impressive — ranging from $7,500 (first-year associates) to $37,500 (seventh-year associates). Couple those numbers with big firm partner complaints that law schools fail to train lawyers for tasks in the big law world and perhaps associates should consider themselves fortunate that they’re not being asked to rebate a portion of their pay for the privilege billing long hours.

(There are problems with current legal education in America, but the critique that graduates aren’t prepared for big law practice misses several key points, including: Eighty-five percent of lawyers will never have big firm jobs, the vast majority of those who do won’t keep them for more than a few years, and most of the remaining survivors will find their careers surprisingly unsatisfying. For more, take a look at “A New Law School Mission.”)

But I digress. For now, the question is fairness. In law firms, it’s a relative concept — a point that causes Lat’s analysis to miss the mark badly.

As Cravath’s 2010 average equity partner profits have been returning to their 2007 high-water mark, compare them to associate bonuses, which haven’t:

Associate bonus after first full year

2007: $35,000, special $10,000

2011: $7,500

Second-year

2007: $40,000, special $15,000

2011: $10,000

Third-year

2007: $45,000, special $20,000

2011: $15,000

Fourth-year

2007: $50,000, special $30,000

2011: $20,000

Fifth-year

2007: $55,000, special $40,000

2011: $25,000

Sixth-year

2007: $60,000, special $50,000

2011: $30,000

Seventh-year

2007: $60,000, special $50,000

2011: $37,500

Earlier this year, Sullivan & Cromwell offered spring associate bonuses for 2010 ranging from $2,500 (first-year) to $20,000 (seventh-year). Cravath and others then followed suit. Even if that happens again this year, recent classes will still be far worse off than their 2007-era predecessors.

Meanwhile, law school tuition has continued to rise, so the newest associates have the biggest educational loans to repay. In the current buyer’s market for young attorneys, that’s more good news for big firms. Their associates — whose average billables are back over 2,000 hours again – won’t be going anywhere. Unless, of course, the staggering attrition rates needed to sustain the leveraged big law pyramid push them out the door. Viewed as an integrated system, the prevailing model functions effectively to produce and exploit an oversupply of lawyers.

Most big firms will follow Cravath’s lead. But they can afford to do better — a lot better — and they should. As associate bonuses have stagnated, the overall average equity partner profits for the Am Law 100 have returned to pre-recession levels — reaching almost $1.4 million in 2010.

How much is enough? More, apparently. According to the latest survey of Am Law 200 firm leaders currently appearing in the The American Lawyer, managing partners expect the upward profits trend to continue. Keeping the lid on associate compensation is a key to that strategy. It hasn’t been a great ride for the non-lawyer support staff, either.

Now you know why my next post will be titled, “Occupy Big Law.” I’m not kidding.

FROM THE SPORTS PAGE

Subtle clues revealing the cause of a fundamental problem confronting the legal profession are everywhere, even in the sports section.

Recently, the New York Times wrote about 26-year-old Josh Satin, who made his major league debut for the New York Mets on Sunday, September 4. This time of year, such stories about minor league ballplayers getting a chance to play for out-of-contention major league teams are common. Regrettably, one of my hometown franchises — the Cubs — affords such opportunities almost every year.

This line of the Satin article caught my eye:

“After graduating as a political science major from Cal, Satin was selected by the Mets in the sixth round of the 2008 draft. And like any number of 20-somethings with a liberal arts degree and nebulous career prospects, he kept law school applications at the ready.”

Satin was drafted the  same year I began offering an advanced undergraduate course that targeted students like him. For many juniors and seniors who can’t decide what to do next, law school becomes a default solution that buys them more time. Sometimes it works out okay; for too many others, it’s a place where dreams go to die.

Bad information bears much of the blame for the problem of poor career choices that, in turn, contribute to widespread attorney dissatisfaction. Law schools skirting the outer limits of candor to fill their classrooms have made the problem worse. So has the transformation of big firms from a profession to a collection of short-term profit-maximizing businesses that use misguided metrics to drive decisions.

As a consequence, some not-so-funny things happened to many of those who went to law school for the wrong reasons. For starters, the promise of a secure future at a well-paying job turned out to be illusory. The persistent problem of lawyer oversupply rose to crisis levels during what would have been Satin’s first year of law school, if he’d gone. Since then, the market for new talent has gotten worse.

But even many who found decent legal jobs have been unpleasantly surprised. Popular images of dynamic lawyers engaged in courtroom battles widen the gap between student expectations and the reality they’ll encounter; that eventually makes for some very unhappy attorneys. By the time the truth hits, many find themselves burdened with educational debt equal to a home mortgage, albeit without the house.

That doesn’t mean no one should go to law school. The law is a great and noble pursuit in many ways. In fact, even the most pessimistic assessments suggest that about half of all attorneys enjoy satisfying careers. I sure did.

Nor does it mean that everyone who dreams of playing major league baseball — or any other high-profile job that the media infuses with irresistible glamour — should give it a shot. Everyone enjoys watching extraordinarily talented celebrities ply their trades, but for most of us, being a spectator is our highest and best use at such events. In his address to the Northwestern graduating class of 2011, Stephen Colbert referred to commencement speakers who tell college graduates to follow their dreams and asked, “What if it’s a stupid dream?”

But acknowledging the stupidity of a dream shouldn’t make law school the fallback answer to one of life’s most important questions, “Now what?”

I don’t know if Josh Satin will remain a major league ballplayer. If he doesn’t, I don’t know what he’ll do after that. But meanwhile, give him credit for having the courage to pursue passions for which he obviously has talent. It’s a safe bet that he’s happier than his college classmates “with a liberal arts degree and nebulous career prospects [who] kept law school applications at the ready,” sent them in, and pursued legal careers for which they had incomplete knowledge, limited enthusiasm, or both. Compounding the difficulties with which they began law school, they’re now having trouble finding the secure, well-paying and exciting work that they thought would be waiting for them when they graduated.

It turns out that for most of the nation’s 50,000 annual graduates, those particular jobs were never there at all.

FAMILY FRIENDLY?

Lawyers know that definitions dictate outcomes. That’s why the Yale Law Women’s latest list of the “Top Ten Family Friendly Firms” includes some surprising names. At least, some surprised me.

It turns out that the YLW’s definition of family friendly is more restrictive than the plain meaning of the words. According to the survey methodology, it’s mostly a function of firms’ attention to particular issues relating primarily to women. There’s nothing wrong with that, but it shouldn’t be confused with what really undermines the family-friendliness of any big firm — its devotion to billable hours and billings as metrics that determine success. That problem isn’t gender-specific.

To compile the annual list, YLW surveyed the Vault Top 100 Law Firms. What would happen if they included all of the NLJ 250 or an even larger group that included small firms? I don’t know, but I’ll bet the list would look a lot different.

Now consider the survey categories and YLW commentary:

– Percentage of female attorneys: “Although YLW found that, on average, 45% of associates at responding law firms are women, women make up only 17% of equity partners and 18% of firm executive management committees. Additionally, on average, women made up just 27% of newly promoted partners in 2010.”

– Access to and use of parental leave: Virtually all firms have them. Big deal.

– Emergency and on-site child care: I understand the advantages, but how much family friendly credit should a firm get for providing a place where young lawyers can leave their babies and pre-schoolers while they work all day?

– Part-time and flex-time work policies: “98% offer a flex-time option, in which attorneys bill full-time hours while regularly working outside the office.” So what? I know senior partners without families who’ve done that for years.

– Usage of part-time and flex-time policies: “On average, 7% of attorneys at these firms were working part-time in 2010.” Will they become equity partners? “Of the 7% of attorneys working part-time, only 11% were partners, a number that may also include partners approaching retirement. Only 5% of the partners promoted in 2010 had worked part-time in the past, on average, and only 4% were working part-time when they were promoted.”

– Billable hours and compensation practices: “[I]t remains to be seen whether it is truly possible to work part-time at all. Our statistics indicate that while part-time attorneys appear to be fairly compensated, many may work more hours than originally planned. Most firms (93%) provide additional compensation if part-time attorneys work more than the planned number of hours or make part-time attorneys eligible for bonuses (96%). However, part-time attorneys received bonuses at higher rates than full-time attorneys (25% compared to 23% on average), suggesting that many part-time schedules may ultimately morph into full-time hours over the course of a year.”

– Alternative career programs: What’s that? Outplacement support?

All of this gets weighted according to another survey of Yale Law School alumni who ranked the relative importance of the surveyed policies and practices.

Continuing efforts to achieve greater big law transparency are laudable. But one problem with lists and rankings is that they take on a life of their own, wholly apart from methodological limitations and the caveats accompanying the results. (See, e.g., U.S. News rankings). Here, the YLW cautioned that it “remains concerned about the low rates of retention for women, the dearth of women in leadership positions, the gender gap in those who take advantage of family friendly policies, and the possibility that part-time work can derail an otherwise successful career.”

The honored firms will gloss over that warning, issue press releases, and delude themselves into believing that they are something they’re not. Someone truly interested in whether a place is family friendly should find out where it ranks on the “Misery Index.” Partners won’t tell you, but that metric would reveal a firm’s true commitment to the long-term health and welfare of its attorneys and their families.

If you really love someone, you should set them free — even if it’s only every other weekend.

DEBT LOADING

The University of Virginia Law School has offered its unemployed 3Ls stipends to defray the cost of bar application fees ($500) and bar exam prep courses ($1500). This follows a protest during admitted students weekend when some UVA students wore (and sold) T-shirts saying, “$40,000 a year and no jobs.” Of course, such public turmoil is the tip of a mammoth iceberg that isn’t limited to UVA.

The absence of jobs — even for graduates of top schools — is especially dire because repayment of educational loans typically begins when higher education ends. The collateral damage of such debt can persist for generations. As one analyst recently told the NY Times, “A lot of people will still be paying off their student loans when it’s time for their kids to go to college.” According to the same Times article, last year’s college graduates left school with $24,000 in debt.

For those moving on to law school, $24,000 soon looks like the good old days. The 2009 Law School Survey of Student Engagement reported this stunner:

“The percentage of full-time U.S. students expecting to graduate owing more than $120,000 is up notably in 2009…29% of students expect to graduate with this level of debt.” Almost half of all law students expect to cross the $100,000 debt threshold before getting their degrees.

Here’s the disconnect: according to the Bureau of Labor Statistics, the median salary for all lawyers nine months after graduation is $68,500. Try servicing $120,000+ debt on that budget. Average compensation for all attorneys in the United States is $129,000 a year.

Why the gap between investment and reward? A better question is, why not? The BLS numbers don’t appear in law school recruiting brochures that are more likely to tout big law’s $160,000 starting salaries. Nor do they disclose the downside that comes with those high-paying jobs.

Likewise, most schools don’t report meaningful employment data, either. When they collectively tell U.S. News that the most recent average employment rate nine months after graduation is 93%, something is amiss — like the fact that employed can mean being a greeter at Wal-Mart or flipping burgers at McDonald’s. In an insightful new article, Professor Paul Campos calculates the true rate — graduates with full-time legal jobs nine months out — to be well under 50%.

Revealing the truth would almost certainly drive down applications, compromise U.S. News rankings, and threaten law schools’ bottom lines. That might force many deans to reconsider what they’re doing to their own students. Too many administrators hide behind rhetoric — “free choice,” “markets work,” and “students should take personal responsibility” — as excuses to disregard their own roles as the profession’s most important fiduciaries. When ignorance and misinformation reign, choices are distorted and markets don’t work. I often wonder if law school deans who have kids the same age as those they’re duping behave differently from the rest. Or do they fault students’  “failure to take responsibility,” too?

My article, “Great Expectations Meet Painful Realities,” appearing in the current issue of the Seventh Circuit Bar Association’s semi-annual publication, Circuit Rider has more on this (starting at page 24).

Fraud can be overt — by commission — or it can occur by omission when there’s a duty to speak. Revealing good facts can create an obligation to disclose the bad ones. Greater candor won’t stop the flow of talented applicants to law schools. Nor should it. The legal profession is still a noble calling. But it has also become a way for some educational institutions improperly to persuade the next generation to mortgage its own future — literally.

Some call it the next big bubble. If it bursts, I’m not sure what that will mean. Because of statutory revisions in 2005, bankruptcy doesn’t discharge student loan debt unless the difficult “undue hardship” test is met. The era of big bailouts has passed, so that’s an unlikely solution as well.

Perhaps we’ll see a new growth industry in the revival of an ancient concept: debtors prisons. Law school deans who lost sight of their true obligations to their students and their profession should run them — without pay.

LAW SCHOOL DECEPTION — PART II

The National Law Journal just published its annual list of “go-to” schools — those that supply the most new associates to large law firms. Clearly, lower tier students aren’t alone in struggling to find jobs. One top school’s ride on the NLJ 250 rankings roller coaster is particularly interesting and instructive.

Northwestern jumped from eleventh to second place on the list in 2007. Then-Dean David Van Zandt credited the “tremendous effort to reach out to employers,” along with the emphasis on enrolling students with significant postgraduate work experience, as attracting big firm recruiters. Last year, Northwestern took the number one spot.

But in 2010, the school dropped to eighth — a relative decline that overall market trends don’t explain, but growing class size does. Northwestern awarded 234 JDs in 2007; the 2010 class had 50 more — 284. One reason: misguided short-term metrics became guiding principles.

Two years ago, the ABA Journal reported that Northwestern had become one of the most aggressive recruiters of transfer students (adding 43 to the first-year class). Such students were a win-win for short-term metrics-lovers: Their undisclosed LSATs didn’t count in the U.S. News rankings and their added tuition boosted the financial bottom line.

Meanwhile, Northwestern’s “go-to” position could continue dropping next year because the class of 2011 will include another new contingent — the first group of accelerated JDs. That program emerged from focus groups of large law firm leaders — part of the dean’s outreach program — who helped to shape Northwestern’s long-range strategic document, Plan 2008, Building Great Leaders for the Changing World.

That leads to another point: leadership. Defining a law school’s proper mission is critically important. There’s nothing wrong with getting input from all relevant constituencies, including large law firms. But retooling curriculum to fulfill big law’s stated desires for associate skills is a dubious undertaking.

In February 2010, Van Zandt explained his contrary rationale during a PLI presentation to large firm leaders. Simply put, he saw starting salaries as setting the upper limit that a school can charge for tuition. Accordingly, attending law school makes economic sense only if it leads to a job that offers a reasonable return on the degree’s required financial investment. However valid that perspective may be, the slipperiness of the resulting slope became apparent when Northwestern’s laudable goal — updating curriculum — focused on satisfying big firms that paid new graduates the most.

Tellingly, in the ABA’s Litigation quarterly, Van Zandt explained that high hourly rates made clients “unwilling to pay for the time a young lawyer spends learning on the job…As a result, the traditional training method of associate-partner mentoring gets sacrificed.” Law schools, he urged, should pick up that slack.

But the traditional training method gets sacrificed only because the firms’ prevailing business model doesn’t reward such uses of otherwise billable time. Rather than challenge leaders to reconsider their own organizations that produce staggering associate attrition rates and many dissatisfied attorneys, the dean embraced their short-term focus — maximizing current year profits per partner.

Relatively, Northwestern still fares well in the “go-to” rankings, but the data depict a dynamic exercise in magical thinking. Among the top 20 schools, it led the way in increasing class size as the school’s absolute big law placement numbers steadily declined: 172 in 2007; 154 in 2008; 142 in 2009; 126 in 2010.

Most law schools feel the continuing crunch. Overall, the top 50 law schools graduated 14,000 new lawyers in 2010; only 27% went to NLJ 250 firms — a drop of three percentage points (400 lawyers) from 2009. But that only highlights an obvious question: Why should that shrinking tail wag any dog? A diversified portfolio of career outcomes less dependent on large firms is a more prudent plan for schools and their students.

Even if jobs reappear, there’s another reason to combine balance with candor: Recent surveys indicate that a majority of large firm attorneys become dissatisfied with their careers anyway. Those metrics never appear on law school websites. Deans are uniquely positioned to help prospective students make informed decisions. They could serve the profession by focusing less on marketing and more on giving prospective students the truth, the whole truth, and nothing but the truth. If only there were a metric for it.

GREED ATOP THE PYRAMIDS

Three recent reports are more interesting when read together: the National Law Journal‘s annual headcount survey at the largest 250 law firms, the Citi Law Firm Group’s third quarter report on law firm performance, and the Association of Corporate Counsel/The American Lawyer (ACC/TAL) Alternative Billing 2010 Survey.

The headline from the NLJ 250 item: a 1,400 drop in 2010 total attorney headcount. This qualified as a welcome improvement over the far deeper plunge in 2009. Associates took the biggest hit, accounting for about 1,000 of the eliminated positions.

That doesn’t sound too bad, until you realize that it’s a net reduction number. As 5,000 new law school graduates got large firm jobs, many more — over 6,000 — lost (or left) theirs. This simple arithmetic suggests an unsettling reality: The relatively few who land big law jobs may discover that keeping them is an even more daunting challenge.

In some respects, that’s nothing new. Long before the Great Recession began, attrition was a central feature of most large firm business models. In 2007, lucrative starting positions were plentiful, but big law’s five-year associate attrition rate was 80%. Some of it was voluntary; some involuntary. The survival rate for those continuing the journey to equity partner was exceedingly small.

That takes us to the Citi report. The only really good news now goes to top equity partners: For them, big law’s short-term profit-maximizing model remains alive and well. The formula remains simple: Firms are imposing increasingly strict limits on equity partnership entry and, according to Citi, charging clients higher hourly rates overall as some partners remain busy with tasks that less costly billers performed previously. (Equity partners have to keep their hours up, too.) Amid the bloodshed elsewhere, average equity partner profits for the Am Law 100 actually rose slightly in 2009 — to $1.26 million. Not bad for the first full year of the worst economic downturn in a century.

But even that remarkable average masks growing wealth gaps within equity partnerships. One law firm management consultant observed, “Before the recession, [the top-to-bottom equity partner compensation ratio] was typically five-to-one in many firms. Very often today, we’re seeing that spread at 10-to-1, even 12-to-1.” That is stunning.

While maintaining leverage and increasing hourly rates, the third leg of the profits stool likewise remains intact: billable hours. As business picks up, firms are hiring fewer associates than in earlier recovery periods. Under the guise of transparency, some newbies are hearing that they have to meet monthly billable hours targets in addition to the annual requirements reported to NALP.

The ACC/TAL survey reveals why: Earlier rhetoric surrounding the new world of alternative fees was largely empty. Hourly billing remains king of the fee-generating hill. As another Am Law survey confirmed, simple discounts from regular hourly rates accounted for 80% of so-called alternative fee arrangements last year.

The pressure to bill hours is increasing. Unfortunately, it remains an important, albeit misnamed, productivity metric. Indeed, rewarding time alone is the antithesis of measuring true productivity, which should focus on the efficiency of completing tasks — not the total number of  hours used to get them done.

As one law firm management consultant told the NLJ, “We’re finally seeing the bottom of the legal recession…There’s been a reset. There are fewer lawyers producing more work and more revenue.”

When the Am Law 100 profit results come out in May, Citi’s prediction will come true: As the economy continues to sputter and young law school graduates worry about their prospects, overall average profits per equity partner will follow their steady upward trajectory.

Law firm management consultants might say all of this results from increased productivity that the “reset” of big law has produced. That’s one way to put it. But the the growing spread between highest and lowest within equity partnerships — coupled with the plight of everyone else — may reveal something more sinister: The worst economic downturn of modern times has provided protective cover to greed atop the pyramids.

NUMBERS TELL A STORY

When challenged to tell a story in as few words as possible, Ernest Hemingway replied with six: “For sale: Baby shoes — never worn.”

I’m not Hemingway, but in his spirit of brevity, I offer five phrases — totaling eight words — distilling a recent Wall Street Journal article, “Law Firms Hold Line In Setting Bonuses,” by Vanessa O’Connell and Nathan Koppel. It appeared on the Monday after Christmas, so you might have missed it.

***
HOURS UP: “Average hours billed by associates at the nation’s top 50 law firms by revenue rose by 7% in 2010.”
***
BONUSES FLAT: “At New York-based Milbank, Tweed, Hadley & McCoy LLP, where bonuses were only slightly above last year’s payouts, hours billed by associates were up about 6%.” [According to Above the Law, the firm's 2010 bonuses ranged from $7,500 for first-year associates to $35,000 for those in the class of 2003. That's a big drop from 2006, when first-year associates received "special year-end bonuses" of $30,000. Student-loan repayment requirements have not experienced a similar decline.]
***
MANAGERS RATIONALIZE: “‘The actual number of [billed] hours is still low compared to what it has historically been,’ [says Milbank's Chairman Mel M. Immergut].”
***
PARTNERS WIN: “Revenue at Milbank Tweed will be up by about 3% on flat expenses, Mr. Immergut says, adding that profit per partner will be up by 8% to 10%, depending on year-end collections.” According to The American Lawyer, Milbank Tweed’s average profits per partner in 2009 were $2.230 million. How much is enough? The answer appears to be “More.”

BONUS TIME!

Firms that abandoned lock-step in favor of merit-based compensation a year ago are now reversing course. Why?

The prevailing theory is backlash. Associate dissatisfaction pervades big law; some saw “competency models” as thinly disguised efforts to reduce associate wages.  (http://www.lawjobs.com/newsandviews/LawArticle.jsp?id=1202443769098&rss=newswire&slreturn=1&hbxlogin=1) Restoring lock-step, the argument goes, should enhance morale.

But when firm leaders really care about morale, they’ll ask associates to evaluate partners on mentoring, training, and overall humanity — and, at least to some extent, partner compensation will reflect the results. Instead of looking into those unpleasant mirrors, managers are likely to form a new committee investigating the “associate problem,” as if it were a mystery.

One way to improve morale would be to tell associates the truth earlier. But quality merit review is tough work. Performing it properly is not in most large firms’ short-term economic interests. For starters, they can’t bill the time to clients.

When I chaired my firm’s associate review committee in the 1990s, the process focused on a single goal: Identifying the best among a distinguished group. That meant evaluating specific skills, developmental needs, and future prospects. To squeeze out personality conflicts and internal politics, partners from outside their assigned associates’ practice areas gathered performance information. Then the committee actually deliberated for an entire day.

In an era when lateral partner movement among firms was rare, promotion decisions were akin to choosing a new family member. Admittedly, subjective judgments produced the distinctions, but partners generally played fair with the next generations. The integrity of the process produced widespread respect for outcomes.

In those days, compensation didn’t turn on billable hours. High outliers (those billing over 2,400) were singled out for counseling that doesn’t happen anymore: “If you burn out, you’re no good to us or anyone else.” Low outliers (below 1,600) attracted a different concern: “Partners aren’t giving that person work. Why? Is there a performance problem?” Between those extremes, hours had little impact on reviews or compensation. As incredible as that now sounds, it was true throughout big law. Just ask the senior partner who is pressing you to “get your hours up.”

Transparency worked. Knowing relative position allowed associates to handicap prospects while they were most marketable. Performance ratings translated into monetary distinctions that spoke for themselves. Anyone displeased with the message could explore other options.

New York firms pioneered lock-step. Exploding client demand caused many more to follow. Uniform compensation to a class allowed partners to postpone the day of reckoning for those with limited futures. Unpleasant news went undelivered.

Some partners rationalized the failure to provide more candid feedback: “We need the bodies to run our business. We’re paying them decent money. So they’re doing ok.”

The first two points were true: A myopic MBA-mentality emerged and departing associates often found that their new positions paid substantially less than they had been making. But doing ok? Some lost their jobs, their lifestyle, and chunks of their self-image in a single belated conversation.

Lock-step was also supposed to improve morale by reducing internal competition. But as compensation packages ballooned, associate satisfaction plummeted and voluntary attrition skyrocketed. Bonuses tied to hours but unrelated to quality erode meritocracies and morale — as does boring work that doesn’t enhance attorney skills.

Modern mega-firms now face the toughest task. To perform truly merit-based reviews, they must develop meaningful individual assessments for legions of associates — sometimes hundreds in a single office. Without proof that the exercise contributes to the bottom line, what incentivizes firms to devote the non-billable time required to perform reviews diligently? Management’s concern for the future, you say? At most big firms, that means projecting next year’s equity partner profits. They’re counting on laterals to fill quality gaps.

Associates should be skeptical about how firms now promising merit review will deliver quality feedback. But lock-step that camouflages meaningful information is no panacea. Student loan repayment demands notwithstanding, sooner is better than later when it comes to acquiring the knowledge that frames life’s most important decisions.

THE END OF LEVERAGE? JUST KIDDING.

Since the beginning of the Great Recession, some observers have predicted the demise of the Biglaw leverage model. (http://www.law.com/jsp/article.jsp?id=1202428174244) Are they correct? After all, recent associate classes are dramatically smaller than in prior years. Unless equity partner ranks shrink proportionately, the argument goes, something has to give and that something will be the very business model itself. The days of using four or more associates to sustain a single equity partner must be numbered, right?

In fact, the model endures, but with structural innovations. What has been transient leverage — continuous non-equity attorney attrition coupled with annual replenishment from law schools — is giving way to something more permanent and, perhaps, more sinister for the future of the profession. Law firm management consultant Jerome Kowalski recently called it the “Associate Caste System.”  (http://www.law.com/jsp/article.jsp?id=1202472939044&PostRecession_Law_Firms_A_New_Caste_System_Emerges)

New hires earning $160,000 a year are the “showcase pieces,” but they are a much smaller group than they once were. Below them at the same firms is a vast underbelly of lawyers. Some are full-time but have taken themselves off partner tracks and make less than their nominal classmates. At the bottom are contract attorneys whose jobs won’t last beyond their current projects. They work per diem with no benefits. Kowalski describes them as comparable to “those guys who hang around in front of a Home Depot waiting for some contractor to show up with a truck.”

The rise of  legal outsourcing could add yet another attorney subclass contributor to Biglaw profits, provided firms can persuade clients to accept fees greater than what the people doing the outsourced work earn. That’s nothing new. For a long time, clients have regarded overpriced associates as a necessary cost incurred to retain a big-name attorney.

Does this add up to the demise of the lucrative leverage model that has kept average equity partner profits for the Am Law 100 well above $1 million annually for many years?

For all practical purposes, it means the opposite. Although big firms are hiring 30 or 35 new associates rather than the 100 or more of a few years ago, most of them will still be unpleasantly surprised when they don’t capture the equity partner brass ring after pursuing it for a decade or more. That component of the model remains intact. Meanwhile, the rest of the leverage action has moved to the growing ranks of underbelly people. For as long as they get paid less than their billing rates, they contribute to equity partner wealth.

In fact, many Biglaw managers prefer this new system. They save on recruiting (say, 35 instead of 150 new associates each year), summer programs, associate training, and other expenses associated with talent development. Meanwhile, the underclass of attorneys who know their places will resign themselves to their limited prospects: a source of permanent leverage.

This continues an ugly trend: Many big firms have been candidly closing long-term career windows for their youngest lawyers. For example, Morgan Lewis already had a non-partner track for those who opted onto it. But when the firm recently announced a return to lock-step associate compensation, it included this kicker: another permanent non-partner track for young lawyers who pursue partnership but don’t make it. (http://amlawdaily.typepad.com/amlawdaily/2010/11/morganlewispay.html)

Rather than up-or-out, it’s becoming stick around and make the equity partners some money. In earlier times, wise firm leaders either promoted such individuals to well-deserved equity partnerships or terminated them as counterproductive blockage that undermined morale and deprived more promising younger lawyers of developmental opportunities. Either way, positioning the next generation to inherit clients served long-term institutional interests. But that’s less important when equity partners jealously guard their clients to preserve personal economic positions and “long-term” doesn’t extend beyond current profits or the coming year’s equity partner compensation decisions.

Here’s my question: How will any aspect of this new world promote the profession’s unique and defining values or improve Biglaw’s dismal career satisfaction rates? Here’s an even better one: Does anyone care?

WORK-LIFE BALANCE MONTH

Pity the United Kingdom, which I just visited. It has only “Work-Life Balance Week” — the last seven days of September. How many Americans realize that October was our “Work-Life Balance Month“? Such commemorations suggest an obvious question: What should we celebrate the rest of the year? Work-Life Imbalance?

The concept of work-life balance is laudable, even if the phrase itself can be somewhat off target. For those who are chronically unhappy with their jobs, “balancing” unpleasant “work” with the rest of “life” is at best palliative, not curative. Dissatisfaction with a career usually infects everything else. Notwithstanding daunting economic realities, a better long-term plan for such sufferers is to find another way to make a living.

On the other hand, my friend, Northwestern Professor Steven Lubet, correctly notes that no job is perfect: “That’s why they call it work.” But attorneys who generally enjoy their tasks still benefit from time spent on people and things other than clients and their problems. Enjoying life outside the office makes most of us better in every way and improves worker productivity. Unfortunately, that’s an increasingly tough sell in most of  the Biglaw world where the MBA-mentality of misguided metrics — billable hours, billings, and short-term equity partner profits — force all oars in the water to row in the same myopic direction.

Being a lawyer has always been demanding, but when even satisfied attorneys feel pressure to work unreasonably long hours, bad things happen to them, their families, clients, firms, and the profession. Slackers can take no comfort in my views. An honest 2,000 billed hours — the annual minimum that most big firms report to NALP — requires 10-hour days and occasional weekends. (http://www.law.yale.edu/documents/pdf/CDO_Public/cdo-billable_hour.pdf) That’s more than firms required 25 years ago, but it’s still not unreasonable.

Unfortunately, too many large firms made the 2,000 minimum culturally irrelevant long ago. No debt-ridden associate concerned about keeping a job wants to bring up the rear of a year-end billable hours list. Nor does the pressure end with advancement. Equity partners must continually justify their economic existences — year-after-year.

During my 30 years at a large firm, my billed hours usually ranged from 2,000 to 2,200 yearly. Once or twice, they reached 2,500 and every incremental hour above 2,200 took a increasingly severe toll. Beyond losing any semblance of a personal life, how well does anyone function during the 14th hour of a workday compared to hour 8? A fatigued mind is fuzzy, irrational, less efficient, and prone to error. Most clients paying for an attorney’s 3,000th billed hour in a year are getting very little for their money. Yet some lawyers do that year after year — and some clients encourage such behavior.

The Department of Transportation reviewed scientific studies on the effects of exhaustion on the human mind and body before limiting over-the-road truckers to 70 hours in an 8-day period, after which they must rest for 34 consecutive hours. (http://www.fmcsa.dot.gov/rules-regulations/topics/hos/) Ask any Biglaw lawyer the last time he or she worked at that clip (or worse) and then went 34 straight hours without looking at a BlackBerry or talking with clients and colleagues on a cellphone.

Who presents the greater societal danger — a tired, overworked driver exceeding the 8-day maximum of 70 hours, or an attorney maintaining a more strenuous pace? Big-hours legal billers might argue that trucker fatigue is different. When a sleep deprived driver causes a catastrophe, innocent bystanders are at risk. If lawyer exhaustion produces suboptimal or even negative results, the client (or the attorney’s malpractice carrier) pays the price; usually it’s financial. That’s reassuring.

No one wants an attorney who has nothing to do. Likewise, every good lawyer sometimes confronts genuine emergencies that require burning the midnight oil. But a firm’s perennial billable hours winners present potential problems that, for some reason, don’t concern most clients. I’ve never understood why.

SOLVING THE BIGLAW MYSTERY OF GROWING CAREER DISSATISFACTION

Clues that explain the growing ranks of dissatisfied Biglaw attorneys are everywhere — even on C-Span. I’d intended to watch the recently televised replay of a judicial conference panel discussion for a few minutes, but the ongoing train wreck captivated this onlooker for an hour. I wonder if I can get CLE credit?

Participants included a Biglaw managing partner, the general counsel of Fortune 100 company, and a professor at a top law school. The absence of a law firm management consultant was surprising; they’re ubiquitous.

There’s no reason to name the Biglaw partner or his firm because his views are mainstream — and reveal why attorney career dissatisfaction continues to increase more rapidly in large firms than elsewhere. Here’s a synopsis of his comments:

1.  Law schools should turn out project managers. That’s what he and his clients really need because front line opportunities — such as trials for litigators — are disappearing.

2.  In their first days at his firm, new associates learn about its finances: “They realize that our 35% profit margins are fragile. They understand the importance of billing their time. They know more about the firm’s finances than I did as a first-year partner.” He didn’t mention Am Law‘s most recent report that his firm’s average equity partner profits exceeded $1 million. Everyone avoided that elephant in the room.

3.  When asked whether associates today felt greater work-related pressures, he was adamant: “No. People today are nostalgic for a time that never existed. As an associate, I worked hundreds of hours a week reviewing documents. Today’s associates don’t work any harder, just differently. They leave the office, have dinner with their families, help put the kids to bed, and then work from their home computers. So they actually have it better than I did.”

The client representative on the panel followed with a line that generated the day’s biggest laugh: “I’m wondering how you billed hundreds of hours a week when there are only 168 hours in a week. But then I realized that you were talking about the bill you sent the client!”

No one asked the Biglaw partner an obvious and unsettling question: His firm’s NALP directory reports an associate minimum requirement of 2,000 billable hours yearly. What was the requirement in the early 1970s, when he was an associate? (Answer: There wasn’t one. There also weren’t cellphones or BlackBerrys that tether today’s attorneys to their jobs — 24/7.)

The law professor responded that law schools can’t train project managers because they’re not business schools. Besides, the law requires something different from such vocational-type training. He could have added that fewer that 15% of all attorneys comprise the NLJ 250, thereby prompting the obvious follow-up: Why should law schools tailor curriculum to satisfy such a small segment of the profession anyway?

“With highly paid starting positions in big firms disappearing,” he concluded, “what am I supposed to tell incoming students they’ll be getting for the $150,000 required to obtain a law degree?” No one suggested the truth, however he saw it.

The general counsel disagreed with the Biglaw partner on a key point: “I don’t hire lawyers to be project managers. I want their best judgments and special skills.” The Biglaw partner replied that perhaps the GC didn’t really know what he wanted or needed.

The audience submitted written questions; the best came from a judge: “I didn’t go to law school to become rich. Why is everything so focused on the money? Is professionalism gone and, if so, how do we recover it?”

When such panels include attorneys willing to speak truth to power, we’ll hear honest answers to those inquiries. But who wants that?

ABOUT THOSE BIGLAW ASSOCIATE SATISFACTION SURVEYS….

The 2010 American Lawyer survey reports the lowest overall level of associate satisfaction since 2004.

The firms faring poorly will take comfort in standard disclaimers: response rates are low and negatively biased; survey questions are flawed; the poll captures attitudes from a generation of young attorneys who feel entitled. We all know the list. Lawyers specialize in explaining away bad facts and sometimes the critique is valid.

But before lower-ranked firms throw these results into a sea of self-serving rationalizations, they should consider the criteria by which others did quite well: relations with partners and other associates, interest in and satisfaction level of the work, training and guidance, policy on billable hours, management openness about firm strategies and partnership chances, the firm’s attitude toward pro bono work, compensation and benefits, and the respondents’ inclination to stay at their firms for at least two more years.

Now correlate each factor to the metrics that dominate today’s Biglaw business models — billings, billable hours, and associate/partner leverage ratios, all of which produce equity partner profits. For too many, the relationship is inverse. The absence of a metric by which firms hold partners accountable for associate satisfaction means that it gets ignored.

What’s the solution? Pay them more money? They won’t object, but according to a recent survey published in the Proceedings of the National Academy of Sciences, additional income beyond $75,000 a year doesn’t increase happiness. (http://www.pnas.org/content/early/2010/08/27/1011492107.full.pdf+html?sid=61f259ad-92a2-470f-b218-23537d8e2972)

How about just telling them to suck it up and push through to a better day? Doesn’t time cure all ills? Another NAS study suggests that our sense of global well-being is U-shaped. We start at a high point around age 18, move down until 50, and take a major upward turn until 85. (http://www.pnas.org/content/107/22/9985.abstract?sid=61f259ad-92a2-470f-b218-23537d8e2972) This comes from a 2008 telephone survey asking 340,000 people how they felt on the day the researchers called them. No attempt was made to control for health, employment, marital status, or anything else. It’s just a cross-sectional slice of the population at a moment in time. In short, draw conclusions at your peril.

Still, it’s interesting to compare these results with recent evidence about the happiness life-cycle of many Biglaw attorneys.

There no need for melodrama or hyperbole. Many lawyers of all ages have fulfilling careers and lead satisfying lives. Generalizations are always treacherous. Within and among firms, there are always exceptions to whatever is typical or predominant.

But the big picture can be informative. In the ABA’s 2007 survey of the profession, about 60% of attorneys in practice fewer than 5 years said they would recommend a legal career to a young person. That’s not exactly a ringing endorsement; however, it’s better than more senior attorneys’ views. For those practicing more than 10 years, it dropped to 40%.

Of course, “more than 10 years” covers lawyers from 35 to 90. So it’s difficult to know if the data support a U-shaped theory. They lend some credence to the notion that there’s a steep slide for people in their 20s, 30s, and 40s. But is there an uptick when attorneys hit the mid-century mark? That’s not clear — and it seems like a long wait.

It’s not all bad news. In the ABA survey, 84% found the practice of law to be intellectually stimulating. When I’ve invited lawyers of different ages and stages of their careers to make guest appearances in my undergraduate course on the profession, Biglaw attorneys spoke enthusiastically about tackling cutting-edge legal problems. Then they heard this question:

“What has been your happiest time as a lawyer?”

Here are some answers:

A 20-something senior associate: “Certainly not now. My life is not my own. I’m billing long hours in the hope of becoming a partner. Then I’ll gain more autonomy and control.”

A 30-something non-equity partner: “Life was easier when I was an associate. But I work hard now because I think things will get better if I make equity partner. Of course, that’s a big ‘if”.”

A 40-something equity partner: “I never realized how good I had it as an associate. Now I feel pressure to bring in clients so I can justify my equity compensation; that process never ends. You think that becoming an equity partner means you’ve crossed some finish line, but that’s when the race really begins.”

A 50-something equity partner: “I don’t know what I’ll do when I’m not a partner in my firm anymore. I haven’t had time to think about what’s next for me. Now, when I consider that prospect, the future becomes a source of anxiety.”

I don’t know to what extent these attorneys’ comments represent their respective demographic groups in Biglaw or elsewhere. But it’s no surprise to me that surveys consistently find practicing lawyers to be among the least satisfied workers and that attorneys in large firms today have the most difficulty finding the upward leg of the U-shaped happiness curve, assuming it’s out there.

The Biglaw business model has provided some of its attorneys with a lot more money than their predecessors. Career satisfaction that contributes to overall happiness?

That’s more complicated.

FOR BIGLAW SUMMER ASSOCIATES ONLY…

You’re thrilled, and understandably so.

In an impossible job market, you came up a winner. The summer associate offer rate for all firms dropped to its lowest level since NALP started gathering such statistics 17 years ago. But you worked hard, got good grades, and listened to tips from hiring partners describing what they wanted in a new lawyer.

You scored big. In compensation, it’s a summer job like none you’ve ever had. Your most pressing concern is whether there will be a repeat of last year’s dip in the full-time job offer rate for summer associates – 69% compared to 90% in 2008. So now you’re heeding advice that ranges from proper attitude to correct attire. At least there is some encouraging summer associate etiquette news. According to one biglaw hiring partner, “indiscretion happens with alcohol, but people understand that. You usually have to knock a partner out cold for it to be a career-ending event.”  Whew! That’s a relief.

Anticipating a favorable next step, you hope that your full-time job offer at the end of the summer is real. You don’t want to wind up like the more than 60% who planned to start their careers at large law firms immediately upon graduation this year, only to be deferred into 2011 and 2012. You can’t bear to think about some of your predecessors who received offers of full-time employment after their successful 2008 and 2009 summers, only to see them revoked outright a few months later.

You’re focused on making sure the firm likes you. There’s no time to consider other things — including whether you like the firm.

Here’s a suggestion: think about those other things now, even if only briefly.

At a recent Cubs game, I was talking with a fellow biglaw refugee. He’d practiced in a large law firm — not mine — for more than 25 years before retiring two years ago.

“What questions should today’s biglaw summer associates ask?” I began.

“It depends on what they want,” he suggested. “They probably fall into one of two categories. The first group consists of those wanting good training, needing a decent salary to pay off their student loans, and planning to do something else when that debt is gone. A second group wants to make a career at a big firm; they think they’re in for the long haul.”

“OK, so what should someone in the first group investigate?”

“That’s easy,” my friend responded. “Mentoring. How is the training? Will they have opportunities to develop skills that make them better lawyers?”

“How about the second group — the ones who think they want a large law firm career?”

“For them, it boils down to a simple question: who among the equity partners has a life that they’d want? If they can’t identify such a person, that’s a big problem. If they can, then they have to dig deeper.”

“Such as,” I pressed.

“Such as, how did the senior attorney do it? Is he or she an oddity? Did the partner succeed under a biglaw model that no longer exists? Most large firms don’t resemble what you and I joined 30 years ago. Your new book says it all.”

“And to get at that issue,” I added, “they should search for answers to these questions:

1. Excluding laterals, how many new equity partners did the firm make this year?

2. How many years did it take them to get there?

3. What was the size of their original associate class?

4. What happened to everyone else?

If the chances of capturing the brass ring are about the same as winning the lottery, at least they know the ground rules. The answers will reveal the culture and working environment of the place.”

“Yep,” he said. “And whether it’s conducive to a happy life. Your new book covers that one, too.”

But some aspects of life seem destined to remain unsatisfying; an hour later, the Cubs lost — again.

BABY BOOMERS STRIKE AGAIN

Getting old is tough. But not nearly as tough as being young these days.

Recently, the National Law Journal reported that an Am Law  top 20 firm adopted a new policy allowing partners two addtional years before they must “begin giving business to younger colleagues.” Instead of 65, they’ll now have to start that process at 67. (http://www.law.com/jsp/article.jsp?id=1202458271311)

Meanwhile, a prominent 63-year-old white-collar defense attorney left his big firm of 16 years to avoid its mandatory retirement age (65). He declined his old firm’s offer of a two-year exemption that would have given him until 67. (http://legaltimes.typepad.com/blt/2010/05/mark-tuohey-leaves-vinson-elkins-for-brown-rudnick-cites-retirement-policy.html)

And the June ABA Journal includes the following admonition from the organization’s president:

“In August 2007, the ABA adopted a policy rejecting mandatory age-based retirement policies. The recommendation urging this advance is worth considering and adoption by all legal employers.”

Yes, she’s a 60-something baby boomer in a big firm, too.

What’s going on? Forget lip-service paid to the old age-discrimination argument against forced departure of equity partners. That sword of Damocles has floated over the profession forever, yet somehow current big firm leaders replaced their predecessors.

So why the big outcry now? The current chorus reflects an unintended consequence of a flawed biglaw business model: resistance to intergenerational transition. But extending check-out time is a bad move for the firm that does it, the younger attorneys working there, and aging baby boomers unwilling to contemplate life after the law.

Aging rainmakers have books of business that make them indispensable to many large  firms. Why? Throughout biglaw, simplistic metrics (billings, billable hours, and leverage) have determined individual partners’ annual compensation with an eye toward maximizing short-term average profits-per-partner that appear in Am Law‘s annual rankings.

It’s become bad long-term news for the firm. In such a culture, partners have every incentive to retain client responsibilities and none to mentor proteges or promote intergenerational transition. As they age, the old-timers hoard their marbles and threaten to take them elsewhere. Does that sound like a prescription for long-term institutional stability?

What about younger lawyers hoping to inherit clients? Many will find themselves in the position of the wealthy parents’ child awaiting a large bequest. By the time it comes, the kid will be in his 50s. Meanwhile, blockage wreaks havoc all the way down the food chain.

How about the aging attorneys themselves? Encouraging them to deny their own mortality isn’t helpful. Sorry, but once you’re over 65, you may be young at heart, but to the rest of the world, your colorists and/or your combovers aren’t persuasive.

Here’s the painful truth: we baby boomers are not that special. Think you’re indispensable? Put your hand in a pail of water, pull it out, and look at the size of the hole you leave. That’s how indispensable you are. Do you remember any of your own mentors fondly? Well, someday that’s what you’ll be to others — if you truly succeed in the ways that matter most.

Those who have followed this blog from the beginning know that its first series of posts, “PUZZLE PIECES — Parts 1 through 12″ (now archived in “CONNECTING THE DOTS”), dramatizes the problem of aging partners who hang on too long.  (http://thebellyofthebeast.wordpress.com/category/connecting-the-dots/) Special ciriticism goes to those who have also inculcated their firms with a business school mentality of misguided metrics. Such baby boomers are now positioning themselves to extract one  final pound of flesh on the way to dotage.

Are these aging leaders who retain literal death grips on their billings positive role models for successors? If the firms themselves don’t survive them, it won’t matter, will it?

2,000 HOURS

Why is Yale an outlier? Last year, only 35% of its graduates started their careers in large firms. An equal number accepted judicial clerkships; many will eventually join biglaw for a while. Still, Yale has a longstanding pattern of trailing peer institutions that, until this year, routinely placed more than half of their graduating classes directly into big firms.

One explanation is Yale’s public service tradition. Recently, I stumbled onto another: the school encourages candor about associate life in biglaw.

For many reasons — including the quest for perceived status, the urgency of educational loan repayment schedules, and the promise of future riches – most graduates seek initial employment in big firms with stated minimum annual billable hour requirements. Unfortunately, students view such numbers as abstractions.

They don’t pause to consider what it means to say that 2,000 hours has replaced 1,800 as a critical evaluation metric. (A 1958 ABA pamphlet suggested 1,300 as an appropriate yearly goal. Seriously. That would qualify as part-time, non-partner track employment today.)

Yale publishes a brochure that breathes life into the numbers. “The Truth About The Billable Hour” outlines hypothetical workdays and should be required reading for any prospective lawyer.(http://www.law.yale.edu/documents/pdf/CDO_Public/cdo-billable_hour.pdf) 

When commuting, lunch, and bathroom breaks get included, the concept of billing 2,000 client hours assumes new meaning. It also provides perspective on legal consultant Hildebrandt Baker Robbins’s observation in its 2010 Client Advisory to our profession:

“The high point of law firm productivity was in the late 1990s, when average annual billable hours for associates in many firms were hitting 2,300 to 2,500.”

Astronomical billable hours are what Hildebrandt and others in its cottage industry told us was “productivity.” So guess what happened after they advised firms to increase it?

According to Hildebrandt in 2010: “The negative growth in productivity, even during the ‘boom’ years preceding the current downturn when demand was growing at a healthy rate, was driven to some extent by associate pushback on the unsustainable billable hour requirements at many firms.”

“Associate pushback” is a euphemism for skyrocketing attrition rates. Before the Great Recession, average associate attrition from the nation’s largest firms in 2007 had risen to 70% of that year’s new hires. (NALP published the data in its 2008 “Update on Associate Attrition.”) No one cares about that crisis level of turnover now because the demand for new graduates has collapsed and those who have jobs aren’t going anywhere soon — at least, voluntarily.

But if recent surveys are accurate, relatively few of the newly employed winners will find career satisfaction in their current firms. So what will happen after they finish repaying their school loans?

Like earlier crises confronting the profession, we’ll probably ignore that one when we get to it, too.

WHEN IS BAD NEWS REALLY GOOD NEWS IN DISGUISE?

One of my former undergraduate students sent me a link to a WSJ.com article on the dismal job market for graduating law students. (http://online.wsj.com/article/SB10001424052748704866204575224350917718446.html)

Of course, the focus is where it always is: on reduced hiring at the nation’s largest firms.

This is not news to most of us in the profession. Big firms started laying off associates in big numbers shortly after the financial collapse in the fall of 2008. Last year, the Am Law 100 saw its first year-over-year reduction in attorney headcount since 1993. (http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202448340864&Lessons_of_The_Am_Law_&hbxlogin=1)

Large firms always get the editorial lead on this subject, in part because that’s where most top students in the best law schools seek to begin their careers. Why they flock in that direction is a complicated question. Herd behavior accounts for some of it, but one factor has assumed overwhelming power in their decision-making calculus: When law degrees come with six-figure student loan debt, financial reality pushes graduates toward biglaw, which shows them the money.

Here’s the hitch. Few know what awaits them if they land one of those increasingly elusive starting positions. For some, the fit works. But for too many, the surprise turns out to be unpleasant.

In its 2007 “Pulse of the Profession” survey, the ABA found that big firm attorneys were unhappier with their careers than any lawyer group. Only 44% gave a positive response to the statement: “I am satisfied with my career.”  (http://www.abajournal.com/magazine/article/pulse_of_the_legal_professionunhappiest)

In contrast, lawyers working in the public sector reported an overall satisfaction rate of 68%.

Getting a public sector law job isn’t easy, either. But it’s curious that the nation’s largest firms continue to dominate the discussion, even though the biggest 250 firms employ fewer than 15% of all attorneys. When you consider associate and non-equity partner attrition rates from those places, the myopia becomes even more puzzling. Very few graduates who begin their careers in such places will stay for more than a few years.

So for current and prospective law students (and attorneys who have lost their jobs), short-term unemployment could become a catalyst for reassessment that leads to longer-term personal rewards.

But I also understand human nature. In the end, the shiny brass ring will continue to blind many people. American Lawyer recently reported that as headcount and average gross revenues declined in 2009 for the Am Law 100, average equity profits per partner increased — to $1.26 million.

How, you might ask, could that happen and what does it mean for those on the inside? I have my own views; they’re in my new novel, The Partnership. (http://www.amazon.com/Partnership-Novel-Steven-J-Harper/dp/0984369104/ref=sr_1_1?ie=UTF8&s=books&qid=1273000077&sr=1-1)

WILL ANYONE NOTICE ON APRIL 27?

When is a partner not a partner?

One of biglaw’s profitability secrets relates to what “partner” means. In increasingly common two-tier partnerships, only equity partners have an ownership interest that translates into the stunning average incomes reported in the Am Law 100. (In 2008, the average was $1.26 million.) The distinction should interest students who seek biglaw jobs and want to know what any particular firm is really like.

So where can they learn the truth? Every law student knows about the NALP Foundation. It’s the only organization that collects comprehensive personnel information directly from major U.S. law firms. It publishes much of it in a Directory that is every student’s bible of prospective employers. But data on firms’ non-equity/equity partner distribution is conspicuously absent from NALP’s reports, as is any attempt to track non-equity partners’ careers.

In December 2009, NALP decided NOT to collect data distinguishing equity from non-equity partners. When disappointed law students heard the news, NALP responded that it would begin compiling such information. It then backtracked because law firms balked.

Hmmmm…..

On April 6, a prominent group of 75 attorneys, judges, and legal scholars protested NALP’s decision on the grounds that tracking non-equity partners was important to assessing a firm’s true gender and racial diversity. Of course, they’re correct.

But there’s another reason to provide students with this information. According to Am Law, between 1999 and 2008, the nation’s 100 biggest firms increased their non-equity partner ranks threefold, but the number of equity partners grew by only one-third. What is the fate of most big firm non-equity partners? Don’t ask; don’t tell.

Could that be the real story behind NALP’s reluctance to cross so many of its biglaw board members, advisors, and benefactors?

NALP said it would reconsider the issue at its April 26 meeting. Will anyone notice? Will anyone care?

For students who understand the issue well enough to do the research, American Lawyer lends a hand. Although it doesn’t have diversity information, the annual Am Law 100 issue publishes overall breakdowns of the largest firms’ equity/non-equity partners. So why not let NALP take the next step? What happened to all of those biglaw free market enthusiasts who usually argue that complete, easily available information facilitates better decisions? What could be more relevant than a firm’s answer to a fundamental question: who are your real partners and whither goest the vast cadre of attorneys who survive the associate gauntlet only fail in their efforts to overcome the final hurdle into the ownership ranks?

PUZZLE PIECES – Part 12

[Concluding the imaginary cross-examination of a real senior partner profiled in the April 2010 issue of ABA Journal (http://www.abajournal.com/magazine/article/not_done_yet) -- and connecting the final dots to the ongoing associate compensation squeeze-plays...]

Q: “Adversity tests leadership, doesn’t it?”

Partner: “I agree.”

Q: “And 2009 was a tough year, wasn’t it?”

Partner: “It was a difficult time for many people.”

Q: “For many people — but not for your firm’s equity partners, right?”

Partner: “Wrong. Our revenues were down and the decisions we made to let people go were agonizing.”

Q: “But not so agonizing that they slowed your mission to keep billable hours up and average equity partner profits at $2 million a year, correct?”

Partner: “Some things can’t be measured in dollars.”

Q: “True. But Am Law reported recently that your firm’s 2009 average equity partner profits were just under $2 million, right?”

Partner: “That’s the report.”

Q: “If we return to your earlier comments about free market capitalism, who has borne the owner’s risk to your firm in the current economic downturn, Dechert’s equity partners who on average saw their incomes drop from $2.35 to $2 million a year, or the salaried workers — associates, non-equity partners, and staff — who lost their jobs in 2009?”

Partner: “We shared the pain. But we’re no different from other large, successful law firms. Someone running another big firm made the point three years ago: We have to keep our stock price high.” http://www.mlaglobal.com/articles/JCashmanMayerBrownCutsTrib.pdf; http://blogs.wsj.com/law/2007/03/02/more-on-the-mayer-brown-departures/tab/article/

Q: “When you say other large, successful firms, are you referring to the ones that, according to a NY Times April 1 article  (http://dealbook.blogs.nytimes.com/2010/04/01/at-law-firms-reconsidering-the-model-for-associates-pay/), are now developing ways to cut associate salaries?”

Partner: “I can’t speak to what other firms are doing.”

Q: “That article wasn’t an April Fool’s Day joke, was it? Underlying all of those efforts is the mission to preserve equity partners’ seven-figure incomes, isn’t it?”

Partner: “If you say so.”

Q: “And now many people like you — aging senior partners who’ve become accustomed to making millions – don’t know what to do next with your lives, do you?”

Partner: “Speaking for myself, time has crept up on me.”

Q: “You were so focused on pulling up the ladder as a way to protect what you had that you forgot to plan your own exit strategy, didn’t you?”

Partner: No answer.

Q: “Justice can be ironic, can’t it? You don’t have to answer that. No further questions at this time.”

PUZZLE PIECES – Part 10

[Continuing the imaginary cross-examination of a real senior partner profiled in the April 2010 issue of the ABA Journal(http://www.abajournal.com/magazine/article/not_done_yet)]

Q: “All right. Let’s look at 2009. In February, your firm cut 19 attorneys from its U.S offices and, a few weeks later, another 10 staffers?”

Partner: “We weren’t alone. Surely, you remember Black Thursday of that month — 800 biglaw attorneys and staff fired in a single day; over 1100 attorneys for the week.”

Q: “In March 2009, you said good-bye to 125 people — 63 attorneys and other time keepers and 62 adminsitrative staff?”

Partner: “With markets crashing, the firm couldn’t keep unproductive people on the payroll.”

Q: “And firms like yours couldn’t let their billable hours drop below 2,000 a  year, could they?”

Partner: “I don’t agree with that.”

Q: “Your firm’s responses for the NALP Directory said its minimum billable hours expectation for associates in 2008 was 1,950 in Philadelphia and 2,000 in New York, right?”

Partner: “So what? That’s not unique. Our press release explained that we’ve tried to match our resources with our projected needs.”

Q: “That press release came in July 2009, when your firm reportedly terminated another 25 associates along with staff and paralegal positions, right?”

Partner: “You’re citing Law.com and Above The Law.” 

Q: “And you’ve been shrinking your summer associate programs – in your Philadelphia headquarters, for example, from 37 in 2008 to 23 in 2009 to 13 in 2010, according to your NALP report?”

Partner: “If you say so.”

Q: “And in New York from 25 in 2009 to 12 this year?”

Partner: “Whatever the report says.”

Q: “Did your firm ever worry that it might be throwing its furniture into the fireplace in an effort to keep the house warm?”

Partner: “We’re keeping the best people. I’m not concerned.”

Q: “And you’re trying to keep the billable time of those survivors above 2,000 hours annually, aren’t you?

Partner: “That’s your characterization and conclusion, not mine.”

Q: “When you joined the firm in the early 1970′s, there’s wasn’t as much discussion about billable hours, which for most big firms in those days averaged around 1,700 a year, right?”

Partner: “It was a less important metric then. Times have changed.”

Q: “And another metric – leverage — now dictates that associates work eight years at your firm before receiving even non-equity partner consideration, right?”

Partner: “That’s what our NALP submission states.”

Q: “And the only thing your NALP submission says about the prospects for advancement to equity partnership thereafter is ‘CBC’ — case-by-case, right?”

Partner: “I don’t think we’re unusual in that respect. There are exceptions, but the pyramid is the prevailing large firm business model today. It endures because it works.”

PUZZLE PIECES – Part 9

Q: “That’s a good way to put it. ‘Everything is relative,’ as you say. In the case of your firm, keeping average equity partner profits above $2 million required you to take a number of cost-cutting actions in 2008, right?”

Partner: “Yes.”

Q: “According to Law.com, in March 2008, you laid off 13 associates in the finance and real estate practice and then later gave them the option of taking temporary positions in other practice groups?”

Partner: “That was the report.”

Q: “In December 2008, you cut 72 U.S. adminsitrative positions and started the termination process for another 15 staff positions in London?”

Partner: “That was the report.”

Q: “And you managed to stay above $2 million in average equity partner profits for 2008, didn’t you?”

Partner: “That’s what the American Lawyer  reported. But look at 2009 if you want to understand the challenges we faced in trying to keep our position in the Am Law 100 rankings.”

PUZZLE PIECES – Part 8

Recession? What recession?

On Monday, April 12, 2010, the National Bureau of Economic Research (NBER), the non-profit group that officially marks the beginning and end of economic downturns, announced that the recession — which started in December 2007 — is not yet over. http://www.nytimes.com/2010/04/13/business/economy/13recession.html

With the DOW Industrials back above 11,000 for the first time since September 2008 and most economists generally bullish on the future, how does biglaw view the situation?

Across the board, attorney hiring remains way down. Many firms that offered full-time jobs to new graduates deferred starting dates into 2011; a few even withdrew offers. Some firms abandoned altogether the second-year student summer programs that have anchored big firm recruiting for more than 40 years. The surviving programs for summer 2010 are a fraction of their 2007 sizes. Pretty bleak, right?

Maybe not for everyone. For a peek inside, consider the ongoing fictional cross-examination of the very real Dechert LLP senior partner profiled in the April ABA Journal (“Not Done Yet”).

(By the way, the data in the questions are real. As Yogi Berra would say, “You can look it up” in the cited sources.)

Q: “You said that the enormous increases since 1995 in equity partner incomes at your firm and others like it reflect ‘free market capitalism’ at work, right?”

Partner: “Yes. Any business enterprise maximizes profits.”

Q: “In capitalism, does the owner bear any risks?”

Partner: “Sure. The owner bears the ultimate risks of the enterprise. If the business fails, the owner’s investment is wiped out.”

Q: “The owner bears the risk of economic setbacks during downswings in the business cycle, right?”

Partner: “Yes.”

Q: “But in the most recent economic collapse, your firm’s owners  — the equity partners — bore very little of that risk, didn’t they?”

A: “I don’t agree. Even the Am Law data show otherwise.”

Q: “Let’s take a look. Am Law reported Dechert’s average equity partner earnings went from an all-time high of $2.35 million in 2007 to $2.145 million in 2008. Is that what you’re referring to?”

Partner: “That’s a decline of almost 9%!”

Q: “A decline to levels that remain astronomical, right?”

Partner: “Everything is relative. 2009 was even worse.”

PUZZLE PIECES – Part 7

With the added context of David Brooks’ article on leadership, “The Humble Hound,” (NY Times, April 9, 2010) (http://www.nytimes.com/2010/04/09/opinion/09brooks.html), we resume the imaginary cross-examination of a very real senior partner profiled in “Not Done Yet” (ABA Journal, April 2010) (http://www.abajournal.com/magazine/article/not_done_yet)  

Partner: “If you’re asking me whether we have very talented attorneys who don’t progress to equity partnership, my answer is yes.”

Q: “Compared to you and those who rose those through the ranks with you, it’s a lot of very talented attorneys, isn’t it?”

Partner: “Sure.’”

Q: “That’s because today’s big firm business model requires leverage – lots of non-equity attorneys and other time-billers for every equity partner, right?”

Partner: “Look, big law firms have become businesses. I didn’t make it that way and I can’t ignore the marketplace. If we don’t maintain high equity partner profits through appropriate leverage ratios and other means, we’ll lose our ability to attract and retain the best people. If that happens, the entire institution will be at risk and we’ll endanger the jobs of everyone who works there. It’s called free market capitalism and I didn’t invent it.”

Q: “You didn’t invent the phrase, ‘pulling up the ladder,’ either, did you?”

AND HUBRIS, too

David Brooks is right on this one — and the legal profession is Exhibit A.

Before resuming my imagined cross-examination of a distressingly real biglaw senior partner in “PUZZLE PIECES,” I want to pause on Brooks’ April 9 NY Times column. He makes my point in a broader context: the pervasive absence of thoughtful reflection that passes for leadership is not unique to big law firms.

Looking at corporate America, he asks, “Who’s in charge?”

Then he answers his own question: “They are superconfident, forceful and charismatic.”

To these characteristics, I would add another: hubris.

Having navigated internal politics to reach the pinnacle of power in their organizations, they don’t revisit their guiding principles. Armed with an MBA (or at least, the equivalent mentality of misguided metrics), they validate their governance using the same criteria that swept them to the top.

As a result, attorneys who enjoyed every advantage as they rose through the ranks have now tied themselves to a mypoic view that encourages them to pull up the ladder on their kids’ generation. Compared to the growing national debt that preoccupies many with concern for our progeny’s well-being, baby boomer greed is wreaking far more enduring havoc.

Brooks argues in favor of an alternative style: the humble hound — a leader who combines “extreme personal humility with intense professional will” and “thinks less about her mental strengths than about her weaknesses…She understands she is too quick to grasp pseudo-ojective models and confident projections that give the illusion of control.”

To save them from themselves, big law firms need more such leaders. But who will mentor candidates through the daunting journey into equity partnerships and then upward?

Certainly not 64-year-old senior partners who don’t think about their own retirements until they receive lists of firm nominees for their management committees, only to find that because of advancing age their names aren’t on them.

What can you say about a leader for whom the approach of a 65th birthday comes as a surprise?

PUZZLE PIECES – Part 6

Q: “OK, let’s get specific. Let’s talk about you. Your path to the top of your firm was a lot easier than it is for new associates today, right?”

Partner: “I don’t accept that. We’re a meritocracy. Cream rises to the top.”

Q:  “Just because cream rises to the top doesn’t mean you skim all of it off, does it?”

Partner: “That’s clever, but what’s your point?”

Q: “Are you saying that the path to equity partnership at your firm is no more difficult now than it was for you?”

Partner: “I don’t think about it that way.”

Q: “I’m sure you don’t. But I’m asking you to think about it that way now. According to Am Law, in 1995 your firm had 315 lawyers of whom 132 — more than 40% — were equity partners, right?”

Partner: “That’s what it reported.”

Q: “In Feburary 2010, American Lawyer reported that your firm ended 2009 with more than double that number of lawyers — almost 800 in all. But during that 14-year period, the number of equity partners rose by a measly 17 – to only 149 , right?”

Partner: “You’ve posed a compound question, but what’s your point?”

Q: “When you’re averaging only one additional equity partner per year on a net basis, every associate in an incoming class of 20, 30 or even more law school graduates faces pretty daunting odds against success, correct?”

Partner: “The best will still make it.”

Q: “And if your firm wants to preserve its equity partners’ multi-million dollar incomes, some highly capable attorneys – people good enough to have advanced if they’d been in your demographic group 30 years ago – won’t capture the brass ring of equity partnership today, will they?”

Partner: “We’ll always have room for the best.”

Q: “Your Honor, I move to strike the witness’ last answer as non-responsive.”

THE COURT: “Motion granted. The witness is instructed to answer the question.”

PUZZLE PIECES – Part 5

Q: “According to Am Law, in a dozen years, your firm’s average equity partner profits soared by $2 million — from about $350,000 in 1995 to $2,350,000 in 2007, right?”

Partner: “That’s what they published.”

Q: “In 2007, you personally were at the top of the equity partnership, weren’t you?”

Partner: “I’m not going to apologize for success.”

Q: “I haven’t asked you to apologize yet, have I?”

Partner: “No.”

Q: “The point is: you were making a lot of money in 2007 when it first hit you that your 65th birthday was approaching, right?

Partner: “Yes.”

Q: “Millions of dollars a year?”

Partner: “Yes.”

Q: “That amount dwarfed what your mentors at the firm made 20 or more years earlier, didn’t it?”

Partner: “Sure. So what? All well-run big firms became more lucrative  over the past two decades.”

Q: “But not everyone in those firms — or yours – benefitted, did they?”

Partner: “Your question is too vague. You’ll have to be more specific.”

PUZZLE PIECES – Part 4

[An imaginary cross-examination of the 67-year-old Dechert partner profiled in "Not Done Yet" continues...]

Q: “What about money?”

Partner: “What about it?”

Q: “Do you think your equity partner income made you reluctant to admit — even to yourself – that someday you’d have to retire from your firm?”

Partner: “I don’t know why it would. Wealth creates options.”

Q: “Perhaps. Or maybe it fuels the lesser angels of our nature. Forty years ago, you didn’t become a lawyer because you thought it would make you rich, did you?”

Partner: “No. As I told the ABA reporter, early American lawyers such as Daniel Webster and Henry Clay inspired me.”

Q: “When you started your career in the early 1970s, no one talked much about billable hours, did they?”

Partner: “No.”

Q: “Or partner leverage?”

Partner: “Nope.”

Q: “Or other law firms’ average equity profits per partner?”

Partner: “How much money people made was not the subject of polite conversation. There’s more information today.”

Q: “I take it that you’re referring to the Am Law 100. What’s that?”

Partner: “The annual listing of the nation’s largest law firms.”

Q: “Do you remember when the first list appeared?”

Partner: “Sometime in the 1980′s, wasn’t it?”

Q: “1985; it started as the Am Law 50. Ten years later — in 1995 — what did Am Law report the total number of lawyers in your firm to be?”

Partner: “Probably around 300.”

Q: “You’re close. 315. How many of those were equity partners?”

Partner: “I don’t recall.”

Q: “Let me refresh your recollection. The July/August 1996 issue of American Lawyer says you had 132 equity partners — more than 40% of your firm’s attorneys. Do you know what Am Law said Dechert’s average equity partner profits were in 1995?”

Partner: “I’m sure you’ll tell me.”

Q: “$345,000 in 1995. Do you know what Am Law reported your firm’s average equity partner income to be a dozen years later — in 2007 –when you had the revelation that, alas, you were getting older?”

Partner: “Go ahead.”

Q: “$2.35 million.”

Pause.

Q: “Let’s talk about how that happened.”

PUZZLE PIECES – Part 3

As he himself described it, one of the top partners at Dechert LLP was 64 years old when he first realized that on his next birthday he’d turn 65. Now 67, he’s quoted in “Not Done Yet”:

“It made me start to think, ‘I’m in the traditional retirement zone without having spent one day thinking about it.’…Every time I set a timetable for a decision, I move it.”

That’s a witness statement I’d like to cross-examine — even if only in my dreams.

Q: “You’re an intelligent, accomplished attorney at one of the nation’s most prestigious firms, aren’t you?”

Partner: “I suppose you could say that.”

Q: “Don’t be modest. You have Ivy League undergraduate and law degrees sandwiched around an MBA, right?”

Partner: “Yes.”

Q: “You’re a senior partner at one of the nation’s elite firms — a group known as the Am Law 100, right?”

Partner: “Yes.”

Q: “You say that you didn’t think about retirement for a single day until you were 64?”

Partner: “Right.”

Q: “The light dawned when a list of nominees for the firm’s policy committee circulated and you saw that your name wasn’t on it, right?”

Partner: “That’s correct.”

Q: “You must have been pretty busy worrying about other things?”

Partner: “I’ve cultivated a very demanding practice. Law has become a 24/7 job.”

Q: “In your case, the job was so demanding that it completely distracted you from any awareness that you were getting older, is that what you’re saying?”

Partner: “Well…”

Q: “Before you answer, let me ask if you think anything else might have been contributing to your denial of the inevitable?”

Partner: “What do you mean?”