BIG LAW RESISTS THE ASSAULT ON DEMOCRACY

Call them unsung heroes.

When attorneys in big law firms get things right, they deserve more attention than they receive. Recently, some of them have won important victories in the profession’s noblest pursuit: protecting our republic. And they’re not getting paid anything to do it.

Start with North Carolina. On July 29, a unanimous court of appeals threw out that state’s voter ID law. In an 83-page opinion, the court wrote that the law had targeted African Americans “with almost surgical precision.”

Behind that monumental win was an enormous investment of money and manpower — all of it pro bonoDaniel Donovan led a team of lawyers from Kirkland & Ellis LLP through two trials over a four-week period. More than fifty witnesses testified. After losing in the trial court — which issued a 479-page opinion denying relief — the plaintiffs appealed. On July 29, they won. Think of it as Kirkland & Ellis’s multi-million dollar contribution to democracy.

On, Wisconsin!

The same day that the court of appeals threw out North Carolina’s unconstitutional voter ID law, a federal judge in Madison invalidated Wisconsin’s effort to disenfranchise African Americans and Latinos. Big law firm partner Bobbie Wilson at Perkins Coie LLP was at the center of that effort. A nine-day trial and more than 45 witnesses (including six experts) culminated in Judge James B. Peterson’s 119-page ruling in favor of the plaintiffs.

On August 22, the seventh circuit court of appeals denied the request of Governor Scott Walker’s administration to stay Judge Peterson’s ruling.

North Dakota

Three days later, Richard de Bodo of Morgan, Lewis & Bockius LLP won a challenge to North Dakota’s voter ID laws. The targets of that legislation were Native Americans.

Like similar statutes enacted throughout the country since 2010, voter ID laws in North Carolina, Wisconsin, and North Dakota were products of a Republican-controlled legislature and governorship. The real motivation behind such restrictions on a fundamental right is as ugly as it is obvious.

Fighting Against the Demographic Tide of History

In 2014, the Brennan Justice Center noted that North Carolina and Wisconsin were in select company: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place: Mississippi (73.1 percent), South Carolina (72.5), Wisconsin (70.5), Ohio (70.0), Georgia (68.1), North Carolina (68.1), and Virginia (68.1).”

Of the 12 states with the largest Hispanic population growth between 2000 and 2010, North Carolina was one of nine that made it harder to vote. The others were South Carolina, Alabama, Tennessee, Arkansas, North Carolina, Mississippi, South Dakota, Georgia, and Virginia.

Rigged Elections? Yes, But in Whose Favor?

Now that the Republican nominee for President of the United States is pushing a dangerous and destructive new theme, the battle to vote has now assumed a great significance.

“I’m afraid the election is going to be rigged,” Donald Trump warned at a rally in Columbus, Ohio on August 1, right after the North Carolina federal appeals court ruled.

That evening he told an interviewer: “I’m telling you, November 8, we’d better be careful, because that election is going to be rigged. And I hope the Republicans are watching closely, or it’s going to be taken away from us.”

Dedicated attorneys — especially those in big firms willing to donate enormous resources to the cause — have worked hard to protect the right of every eligible person to vote. If they hadn’t, then the North Carolina legislature might, indeed, have rigged the election in a key swing state that President Obama had won. But that’s not what Trump meant, was it?

No, he sees a different enemy.

“[P]eople are going to walk in, they are going to vote 10 times maybe. Who knows?” he said in an August 2 interview.

He now has a website page: “Help Me Stop Crooked Hillary From Rigging This Election.” Such whining is actually much more than that. It’s a campaign tactic uniting two sinister and pervasive themes: racial division and attacks on the rule of law.

Facts Don’t Matter

Trump began stoking fear and division with a promise to build a wall to keep out Mexicans, whom he called rapists and drug dealers. He then coupled it with a “deportation force” to “round ’em up,” sending 11 million illegal immigrants “back where they came from.”

Then he professed ignorance about David Duke. (“I don’t know anything about David Duke… I know nothing about white supremacists.”) Before long, he unleashed hostility toward “Mexican” Judge Gonzalo Curiel. After scaring people, it was a short step for him to becoming their self-professed “law-and-order” savior.

Now he is wrapping his message in a long-discredited canard. Defenders of unconstitutional voter ID laws persist in fomenting “election fraud” paranoia, even though it lacks any factual basis. Professor Justin Levitt at Loyola Law School, Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast.

In the North Dakota case, Judge Daniel L. Hovland wrote, “There is a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”

Likewise, in the Wisconsin case, the judge ruled. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

And in the North Carolina case, a unanimous court of appeals concluded, “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”

Mob Mentality

The cry of phantom election fraud feeds Trump’s narratives, while taking them a perilous step farther: de-legitimizing an election that polls now show Trump is losing “hugely.” As his prospects sag, his vile rhetoric escalates.

Shortly after an August 10 poll showed Trump trailing in Pennsylvania by double digits, he went to that state and told an Altoona crowd, “Go down to certain areas and watch and study and make sure other people don’t come in and vote five times… The only way we can lose, in my opinion – I really mean this, Pennsylvania – is if cheating goes on… ”

Never mind that Pennsylvania hasn’t voted for a Republican Presidential nominee since 1988. Even an incumbent, George H.W. Bush, couldn’t carry it in 1992.

Trump then continued waving his red herring: “Without voter ID there’s no way you’re going to be able to check in properly.”

Scorched Earth

The real danger to democracy isn’t election rigging or cheating. It’s Donald J. Trump. De-legitimization – the ultimate ad hominem attack on a process to undermine its outcome – is a standard tactic from his deal-making playbook. When it appeared that he might not arrive at the Republican convention with enough delegates to secure the nomination, he warned about “riots,” if someone else won.

Never mind the rules; they’re for losers. Anyone fearing that Trump will win should fear more that he won’t.

Trump knows that facts don’t matter because – true or false – the branding sticks. For example, there was never any evidence to support Trump’s wild “birther” claims about President Obama in 2011. But five years later, 20 percent of Americans still believe — today — that he was born outside the United States.

Some people will always believe anything Trump says, even as he contradicts himself from one moment to the next. His infamous line was pretty accurate: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”

Perhaps he is discovering that “any” was an overstatement. But his de-legitimization strategy worked against most Republican politicians, who folded like cheap suits rather than break from the man-baby who would be king. Now the stakes are higher. His targets are the rule of law, the essence of democracy, and the peaceful transfer of Presidential power that occurs every four years.

The Real Losers

The eventual victims of Trump’s scorched earth approach will be the American people. If, as with his false “birther” claims five years ago, 20 percent of voters – about half of his current supporters – believe that Trump’s defeat results from a “rigged” election that “cheaters” won, the collateral damage to the county will be profound.

Donald Trump lives in a simple binary world of winners and losers – and he’s all about winning at any cost. He measures success in dollars. His latest tactic makes democracy itself the loser. Try putting a price on that. And thank some big law firms and their attorneys who are willing to make the investment required to stand in his way.

ARE YOU A SMOKIN’ BUCKETFUL OF AWESOME?

[NOTE: For a limited time, the ABA Journal is soliciting nominations for its annual list of the “100 best websites by lawyers, for lawyers, as chosen by the editors of the ABA Journal.” To nominate The Belly of the Beast, please click here.]

Some of my previous posts challenged law school deans, admissions officers, and faculty members who live in denial about the crisis in legal education. This time, I celebrate a law professor who sees things as they are and isn’t afraid to speak truth to power.

Before joining the faculty at the University of North Carolina, Professor Bernard Burk was an academic fellow at Stanford. Prior to that, he spent 25 years in private practice at a firm that eventually merged with Arnold & Porter. We don’t agree on everything, but Burk’s three-part series at the Faculty Lounge culminates in a June 30, 2014 post that earns him my latest “Commendable Comment Award.”

Questioning The “Versatility” Sales Pitch 

Burk analyzes the “versatility of a legal degree” argument. It’s often cited to counter some law schools’ dismal employment outcomes for graduates seeking jobs that actually require a JD. More specifically, the ABA allows schools to soften their self-reported employment results with a loosey-goosey category: “JD-Advantage” positions. To be sure, some are good jobs; but many aren’t. The problem is that schools don’t have to disclose any information about them.

The ABA’s definition of JD-Advantage includes a range of examples so broad that it demonstrates the potential for gaming the numbers: corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, risk manager, accountant, journalist, human resources employee, law firm professional development worker, and almost anyone working at a law school in any capacity — from admissions to career services. And even that list isn’t exclusive.

Schools following the ABA’s honor system of reporting don’t need much imagination to dump lots of graduates into the JD-Advantage category. Perhaps that’s one reason that the category has been growing so dramatically. For the class of 2013, more than 6,300 graduates had what their schools called JD-Advantage jobs, a significant increase from 5,200 for the class of 2011.

Admissions Deans as Used Car Salesmen

Professor Burk compares law schools relying on undifferentiated JD-Advantage jobs to used car salesmen. Both assure you that what they have is what you need. But used car salesman never say, “No worries, pal. You should buy this car because, even if the engine implodes the minute you drive off the lot, the smoking pile of scrap that’s left will have measurable salvage value.”

“We generally don’t buy cars for their salvage value,” Burk notes, “especially when any car you buy will have salvage value if it can’t serve the purpose you actually bought it for.”

But some — not all — JD-Advantage jobs look more like the realization of a legal degree’s salvage value for those who have them. That doesn’t mean a legal education lacks intrinsic value. As Burk observes, some prospective students might view what they learn in law school as valuable for its own sake, regardless of whether it leads to a career in the law or enhances their earning power. But three years and $150,000 in tuition is more than most people are willing to spend on such a personal enrichment exercise alone.

A more thoughtful approach is what Burk calls the “Practical Justification Test.” Like the prospective used car purchaser, the prelaw student asks (or should ask), will a law degree actually take me where I want to go? For this group, full-time long-term JD-required employment upon graduation is the most meaningful outcome because law schools exist to produce lawyers. Distinctions based on that criterion should be critical in deciding whether and where to attend law school.

Hope v. Reality

A third rationale for law school involves magical thinking. That’s where some deans, faculty, and admissions officers have now staked their claims. Burk describes the premise of this argument as follows: “[T]he course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything.”

In response to Burk’s categories, University of Kansas Assistant Dean for Admissions Steven Freedman (the subject of one of my earlier posts) offers a fourth category: “[M]any students see the versatility of a law degree as form of risk insurance.”

Freedman’s comment generated lines from Burk earn him my latest “Commendable Comment Award”:

“[T]outing the salvage value of a law degree as ‘a form of risk insurance’ without offering a clear-eyed assessment of how likely it is that the risk insurance will be needed, what its coverage limits are, and how cheaply you could get the same benefit another way is inexcusably incomplete. It’s a failure to accept the difference between a Smokin’ Bucketful of Awesome and smoking pile of scrap.”

There’s an easy fix. The ABA could require law schools to disclose in detail what their graduates are actually doing in JD-Advantage jobs or, at a minimum, how much they’re earning in such positions. Until that happens, prospective students would be wise to assume that, for most schools, the category includes a lot of scrap.

ANOTHER COMMENDABLE CONDUCT AWARD

Big law bankruptcy attorneys may have finally killed their golden goose. We’ll never know if less hubris and more thought might have prevented the U.S. Trustee from releasing new attorney compensation guidelines that surely have prominent members of that bar squirming. Those guidelines earn my latest “Commendable Conduct Award.” Starting November 1, we’ll see how many judges have the courage to apply them.

Restraint in the race to $1,000 an hour billing rates to maximize short-term profits might have served practitioners better in the long run. Likewise, more discretion in responding to media inquiries about the lucrative bankruptcy law world might have been wiser than Weil, Gotshal & Manges partner Harvey Miller’s stunning comment to the Wall Street Journal in 2011: “The underlying principle is, if you can get it, get it.”

Flying Under the Radar

The bankruptcy practice in big firms is unique because there’s no real client putting the usual counter-pressure on attorneys seeking to enhance their personal wealth. It’s the billable hour regime at its worst.

Outside bankruptcy, corporate clients everywhere are pushing back on big law firms’ hourly rate increases, refusing to pay for high-priced first-year associates, demanding budgets, scrutinizing attorney activities, and generally seeking greater economy in the delivery of outside legal services. Bankruptcy attorneys have little comparable accountability. They simply set their rates, decide what tasks to perform, and assign manpower as they see fit.

Hello and Good-bye

Unlike corporate clients who dangle the prospect of long-term relationships and future business to encourage their outside attorneys to be more efficient, bankruptcy practitioners have a series of one-shot engagements. When the current proceeding is over, their bankruptcy “client” of the moment disappears, never to return.

Bankruptcy petitions are also vehicles for law firm oligopolists to share pricing information. When most senior big firm bankruptcy partners request $1,000 an hour, it becomes the reasonable and customary rate. But even more remarkable are the $400 an hour and up rates that they can often get for junior associates — the same ones who add so little value that real clients refuse to pay for them at all.

Theoretical Oversight

The U.S. Trustee reviews fee petitions. But to date, those efforts have amounted to quibbling over obviously suspect expenses, such as $500 hotel rooms when cheaper accommodations were available or taking limos when taxis were a reasonable alternative.

Likewise, attorneys representing competing interests in the bankrupt’s estate — creditors, for example — can object to the fees of other attorneys in the proceeding. But none has any incentive to rock the lucrative hourly rate boat in which they all sit. Bankruptcy judges have the final word on attorneys’ fees petitions and they routinely rubber-stamp them.

Now It’s Becoming Real

When the U.S. Trustee first proposed the new guidelines, big firm bankruptcy lawyers throughout the country united in opposition. The most strident objections were to the idea that firms should reveal hourly rates for comparable non-bankruptcy associates and partners working for real clients.

Were firms worried about providing data that would allow the U.S. Trustee and supervising courts to compare hourly rates sought in bankruptcy with those resulting from a market that is at least somewhat more competitive? Soon, we’ll find out.

The new forms accompanying the guidelines require, among other things, that firms reveal the “blended hourly rates” of their personnel in 10 different categories ranging from equity partners to paralegals. In addition to the blended rates sought in the fee petition, firms also must disclose their firmwide (or, in some cases, office wide) blended rates for each category.

A Step on the Road to Transparency

The new guidelines aren’t perfect and attorneys will manipulate them. Budgets are optional. Hourly “step rate” increases are automatic as attorneys gain seniority. Attorney categories are too broad, with a single category for all equity partners and with associates grouped into categories covering three years. An especially large loophole allows firms to report either the “billed” or “collected” comparable hourly rate. (Real clients request discounts from standard hourly rates, and they often get them.)

Even so, the U.S. Trustee deserves credit for moving a dark corner of the profession from opacity to translucence. Free market devotees — of which big law has many — should embrace the changes. So far, big firm partners have resisted them vehemently.

The governing principle for too much of the large law firm world has become “if you can get it, get it.” Perhaps many of those espousing that view are about to “get it” in a much different way than they have in the past.

COMMENDABLE CONDUCT AWARD

Regular readers know that I’m often critical of many law school deans. But when one of them gets it right, let’s give credit where it’s due. As the glut of new attorneys persists, the University of Kansas School of Law Dean Stephen Mazza became the latest dean to announce significant reductions in incoming class size. With that action, he has earned a “Commendable Conduct Award.”

Not the first

The University of Kansas isn’t the first to implement such cuts. Last year, Frank Wu, chancellor and dean of the University of California Hastings School of Law announced a 20 percent reduction in class size for the fall of 2012.

“The critics of legal education are right,” Wu said. “There are far too many law schools and there are too many law students and we need to do something about that.”

George Washington University, Albany Law School, Creighton University School of Law, and Loyola University Chicago School of Law have reduced entering class size, too. In March, Northwestern Law School Dean Daniel Rodriguez said his school would reduce the fall 2013 class by 10 percent. “We can’t ignore the destabilizing forces that the legal industry is facing today,” he said.

KU deserves special praise

All of these efforts to reduce the size of entering classes are commendable. But there are several unique aspects to the University of Kansas announcement that make it especially noteworthy.

First, the reduction as a percentage of enrollment in prior years is large: from 175 students graduating this year to a target of 120 students for the 2013 entering class and for the foreseeable future.

Equally significant, it appears that KU didn’t have to take its laudable step. The dean said that applications were down only about 10 percent — far less than many other schools. Moreover, an impressive 82 percent of 2012 graduates secured long-term jobs where a JD was required or preferred — far above the national average.

As an added bonus, a KU legal education is a relative bargain compared to many other schools: $18,600 tuition for full-time students who are state residents; $31,500 for out-of-state.

Motivations matter; outcomes matter more

Everyone expects that the decline in the number of law school applicants will produce lower average LSATs and GPAs for the entering 1L class. That, in turn, would hit the selectivity component of a school’s overall U.S. News ranking. It’s possible that some deans have reduced entering class size as part of a strategy to protect their rankings. But if the overall net outcome is that law schools as a group produce fewer lawyers three years from now, then the rankings may have helped to mitigate damage that they have caused since their first appearance in 1987.

Ay, there’s the rub. Will there be fewer total law graduates, or will other schools (and new ones in the pipeline) enroll the students that KU and others don’t accept? Indeed, will some schools expand enrollments solely to increase their tuition revenues? Asking those institutions to consider the long-term well being of the marginal students they recruit, or the sad state of the profession itself, would be asking too much, I guess.

One way to counteract the agendas of deans who refuse to do the right thing is to recognize those who do. Even more important is the task of helping prospective law students make informed decisions before they apply to law school. Over time, perhaps more of them will take advantage of increased transparency to assess realistically their own suitability for a satisfying and successful legal career. But at any age, encounters with confirmation bias are never easy.

Meanwhile, kudos to Dean Stephen Mazza and the University of Kansas School of Law. He’s been dean only since April 2011, but he’s already making a profound difference in the way that matters most — one person at a time. (And thanks to one of my regular readers who brought Dean Mazza’s announcement to my attention.)

A COMMENDABLE (AND COURAGEOUS) COMMENT AWARD

As the executive director of National Association for Law Placement (NALP) — the organization that sets the rules whereby big law firm employers and their prospective new hires find each other — James Leipold has a tough job. Sometimes, NALP has looked like a victim of regulatory capture. Students’ interests have often taken a back seat to two constituencies that wield far more economic power, namely, law schools and big law firms.

Such power was one reason that NALP initially “back-pedaled” in early 2010, when big firms balked at NALP’s request to provide detailed information about equity partners’ gender and race. At the time, Leipold acknowledged that some firms threatened to withhold all information from the annual NALP employer directory, which “represents an important revenue source for us.”

Another example of big law firm influence over NALP is the evolution of the rules governing employment offers — including the powerlessness of students when a big firm unilaterally rescinds a previously accepted one. But NALP’s shortcomings are topics for another day.

Today’s commendation goes to Leipold because he recently stood up to deans who wanted him to provide prospective law students with a “better message” about the legal job market. That is, they wanted him to lie. Leipold said he was “surprised” at this turn of events, including deans who asked him to describe the job market as “good.” He refused. But his real act of courage was in revealing that some deans were applying such pressure. They should be ashamed. And they should be named.

Nothing new

Many deans have been hyping their schools with misleading employment statistics for a long time. Truth is finally catching up to a lot of them, notably with the ABA’s newly required data. Harsh reality hit with the news that, nine months after graduation, slightly more than half of all 2011 law graduates were able to get full-time long-term jobs requiring bar passage. The recent past has been bad and the current picture is ugly. So some deans have tried to shape perceptions about the future.

Leipold rightly resisted. The employment prospects for law graduates generally are not likely to brighten any time soon. Leipold could have said even more about that: there are still far more law school applicants than places for them; most estimates project that over the next decade, schools will produce twice as many law graduates as the number of legal jobs available for them. Even at the so-called pinnacle of the profession — big law firms — the total number of attorneys has yet to return to pre-recession levels.

The case for names

What will stop this insanity? Unfortunately, the problematic deans are responding to institutional pressures. That’s because law schools have become large cash cows for their universities. The impulse to run a school as a business that maximizes short-term profits is irresistible to them and their superiors. Every incentive they see encourages them to pump-and-dump: pump up demand for law students and dump debt-ridden graduates on a glutted market. Their unemployed graduates become someone else’s problem.

It turns out that the someone else is not just the victimized students themselves. Eventually, the profession itself suffers. Staggering student debt will haunt some graduates forever because bankruptcy won’t discharge it. Income-based repayment programs will help some of them, but as Professor William Henderson observes, taxpayers could wind up paying large portions of those participants’ ultimate obligations when the federal government picks up the tab for residual unpaid debt.

Will anything make these deans stop? The villains are giving all other deans a bad rap. They know who they are. Now, James Leipold does, too. Perhaps it’s time for the rest of us to learn their names. Where all else has failed to alter unfortunate behavior, maybe public humiliation will help. Nothing else seems to be working.

COMMENDABLE COMMENT AWARD

Rare candor at the top deserves recognition.

The September issue of The American Lawyer honors the magazine’s 2011 Lifetime Achievers — an impressive group. The list is alphabetical, which made Richard Beattie first. Now 72, he has enjoyed a long and distinguished career since joining Simpson, Thacher & Bartlett in 1968. Complementing a wildly successful big firm transactional practice, he also served the public in many capacities, including general counsel to the former U.S. Department of Health, Education and Welfare under Secretary Joseph Califano, Jr. in the 1970s.

In 1991, Beattie was elected to Simpson Thacher’s executive committee. He became chairman in 2004. By any measure, he has certainly earned his latest accolade. Yet another — my “Commendable Comment Award” — results from his response to The American Lawyer‘s question about his biggest regret:

“I regret the number of vacations with my family I missed as a result of working on transactions.”

Succeeding in big law requires talent, hard work, sacrifice, and — dare I say it — luck. Only the most reflective of big law leaders credit fortuity to their rise and even fewer discuss the downside — the personal cost that they and their families bear.

Mr. Beattie’s candor comes with a bit of irony. The same issue of the magazine reports this year’s Midlevel Associate Satisfaction survey. Overall, Simpson Thacher is tied for 56th out of 126 firms in the survey. It’s 36th out of 85 Am Law 100 and Global 100 firms. And remember, overall associate satisfaction for the survey group dropped again this year to an all-time low; being in the middle of the pack is, at best, a mediocre finish.

Going behind the numbers, Simpson scores below average in “family friendliness” — 3.47 out of five (the national average is 3.62). The firm is also below average in its associates’ stated likelihood of staying two years (3.44 compared to 3.58 nationally).

One more notable statistic from this year’s 2011 Am Law 100 listing: Simpson Thacher’s 2010 partner profits increased by more than nine percent over 2009. Its average profits per equity partner were $2.64 million — eighth place.

Being a lawyer has always been demanding. That won’t change. There are times when a situation requires sacrifices that only a particular lawyer (and his or her family) can make in responding to a client’s genuine emergency. But when it comes to big firms, clients in such situations rarely require the services of any particular mid-level associate.

In fact, during thirty years of practice, I never heard a client say, “I need associate X to cancel his or her family vacation to meet with me.” The seasoned senior partner may seem indispensable. Even the best midlevel associate? Never.

Which takes me back to Beattie and his firm. He gets high marks for admitting that work impaired his family life, but as a member of Simpson Thacher’s executive committee for two decades and chairman for the past seven years, he’s also had a unique power to shape his firm’s culture. His accomplishments are worthy of The American Lawyer‘s Lifetime Achievement Award, but he and others who set the profession’s tone have a special obligation to foster working environments in which young lawyers avoid what Beattie now describes as his biggest regret. Indeed, if they can’t, who can?

No leader of any big firm can single-handedly reverse the last two decades of unfortunately myopic and often short-sighted trends. But all should consider adopting “The Misery Index” — an informational tool that free market disciples should embrace. Such a metric might influence institutional behavior for the better, even if only marginally. Those willing to try it could, perhaps, improve the profession in ways they never thought possible back when they were missing all of those family vacations. There’s still time to keep others from missing theirs.

Anyone receiving honors recognizing a lifetime of achievement could leave no better legacy than empowering young proteges to avoid regrets similar to their own. Of course, the problem isn’t unique to Beattie or Simpson Thacher. It’s wrapped into the larger question of defining long-term success — a question that every big law leader should ponder for his or her firm. Regrettably, few will. There’s no way to bill a client for the time.

HOWREY’S LESSONS: A NATIONAL CONVERSATION

My latest “Commendable Comments” award goes to a non-lawyer, the Washington Post’s Pulitzer prize-winning columnist Steven Pearlstein.

Since I started my blog a year ago, two of my most popular articles have been “Howrey’s Lessons” and “Howrey’s Lessons — Part II.” Versions recently ran on Am Law Daily, where they also attracted widespread attention.

I don’t know if Pearlstein was among the thousands who saw my analysis of Howrey’s end and its relationship to ubiquitous big law trends, but his March 20 column reinforces my themes. If I hadn’t been attending the Virginia Festival of the Book in Charlottesville to discuss The Partnership, I might have missed it. I’m glad I didn’t.

Both of my Howrey articles focused on a central point: What matters most are not the things that make the once venerable institution different from other large firms. Rather, the true significance of its death lies in what makes the firm similar to many, many others. Intelligent lawyers who specialize in distinguishing adverse precedent prefer to think otherwise; they do so at their peril.

Noting as I had that, as recently as 2008, the DC-oriented Legal Times hailed Howrey’s final chairman, Robert Ruyak, as one of 30 “visionaries,” Pearlstein describes how quickly the world turned. In the end, I found Ruyak’s litany of claimed contributors to the firm’s demise — clients demanding contingency fee arrangements; conflict problems that made European growth problematic; and the rise of competitive electronic discovery vendors — unpersuasive; I explained why in “Howrey’s Lessons — Part II.” Pearlstein is more charitable in accepting such excuses at face value. That’s understandable because he’s never worked in a large firm.

But on the big picture, his assessment echoes my earlier observations:

1. Howrey’s global expansion through lateral hiring created a firm of free agents who lacked the deep loyalties that once characterized the firm. That phenomenon wasn’t unique to Howrey.

2. Pearlstein notes that profits per partner has become “not only the key determinant of how much partners take home, but it is the metric by which the very competitive and ambitious people in the legal business keep score.” My regular readers know that the business school mentality of misguided metrics — billings, billable hours, and leverage ratios aimed at increasing partners’ short-term profits — has transformed a once noble profession in unfortunate ways.

3.  Pearlstein observes that when Howrey’s average partner profits took a downward turn, the partnership — which wasn’t really a partnership in the way most people understand that concept — found that its “bonds of loyalty [were] not strong enough to hold Howrey together.” In “Howrey’s Lessons,” I put it this way: “[W]hen cash becomes king, partnership bonds remain only as tight as the glue that next year’s predicted equity partner profits provide….”

Likewise, Pearlstein’s overall conclusion is identical to mine: The most troubling aspect of Howrey’s death is that “the industry seems to have learned nothing from such episodes.”  He closes with an acknowledgement of the widespread problem of partner and associate dissatisfaction that the prevailing big law culture has exacerbated.

On only one point would I offer this limited qualification to Pearlstein’s survey of the legal blogosphere concerning Howrey. He suggests that the media (press and blogs) offer “the same uncritical acceptance of…a world in which firms are held together by nothing more than a collective determination to increase profit per partner.” Respectfully, I offer my ongoing commentary over the past year as a consistent voice in challenging the prevailing big law model.

When an intelligent, sophisticated observer such as Steven Pearlstein takes a seemingly isolated issue involving lawyers — that is, Howrey’s disintegration — and uses his national platform to shine a welcome light on a deeper professional problem, it becomes that much more difficult for big law leaders to ignore. They’ll continue to turn a blind eye to the incubating crisis, but perhaps they’ll rest just a little bit less easily in doing so.

Pearlstein’s prize is a copy of The Partnership, which I will send him this week. I’m confident that, as an interested outsider, he’ll find it fascinating.