THE PERVASIVE AMAZON JUNGLE

Amazon’s founder and CEO, Jeff Bezos, hates the recent New York Times article about his company. He says it “doesn’t describe the Amazon I know.” Rather, it depicts “a soulless, dystopian workplace where no fun is had and no laughter heard.” He doesn’t think any company adopting such an approach could survive, much less thrive. Anyone working in such a company, he continues, “would be crazy to stay” and he counts himself among those likely departures.

The day after the Times’ article appeared, the front page of the paper carried a seemingly unrelated article, “Work Policies May Be Kinder, But Brutal Competition Isn’t.” It’s not about Amazon; it’s about the top ranks of the legal profession and the corporate world. Both are places where the Times’ version of Amazon’s culture is pervasive — and where such institutions survive and thrive.

The articles have two unstated but common themes: the impact of short-termism on working environments, and how a leader’s view of his company’s culture can diverge from the experience of those outside the leadership circle.

Short-termism: “Rank and Yank”

Bezos is hard-driving and demanding. According to the Times, his 1997 letter to shareholders boasted, “You can work long, hard or smart, but at Amazon.com you can’t choose two out of three.”

The Times reports that Amazon weeds out employees on an annual basis: “[T]eam members are ranked, and those at the bottom eliminated every year.” Jack Welch pioneered such a “rank and yank” system at General Electric long ago and many companies followed his lead. Likewise, big law firms built associate attrition into their business models.

Theoretically, a “rank and yank” system produces a higher quality workforce. But in recent years, a new generation of business thinkers has challenged that premise. Even GE has abandoned Welch’s brainchild.

As currently applied, the system makes no sense to Stanford Graduate School of Business professor Bob Sutton, who observed, “When you look at the evidence about stack ranking…. The kind of stuff that they were doing [at GE], which was essentially creating a bigger distribution between the haves and the have nots in their workforce, then firing 10% of them, it just amazed me.”

If Amazon uses that system, which focuses on annual short-term evaluations, it’s behind the times, not ahead of the curve.

Haves and Have Nots

Professor Sutton’s comment about creating a bigger gap between the haves and the have nots describes pervasive law firm trends as well. The trend could also explain why Bezos and the Times may both be correct in their contradictory assessments of Amazon’s culture. That’s because any negative cultural consequences of Bezos’ management style probably don’t seem real to him. Bezos is at the top; the view from below is a lot different.

This phenomenon of dramatically divergent perspectives certainly applies to most big law firms. As firms moved from lock-step to eat-what-you-kill partner compensation systems, the gap between those at the top and everyone else exploded. Often, the result has been a small group — a partnership within the partnership — that actually controls the institution.

Those leaders have figured out an easy way to maximize short-term partner profits for themselves: make the road to equity partner twice as difficult than it was for them. As big firm attorney-partner leverage ratios have doubled since 1985, today’s managers are pulling up the ladder on the next generation. It’s no surprise that those leaders view their firms favorably.

Their associates have a decidedly different impression of the work environment. Regular attrition began as a method of quality control. At many firms, it has morphed into something insidious. Leadership’s prime directive now is preserving partner profits, not securing the long-run health of the institution. Short-term leverage calculations — not the quality of a young attorney’s lawyering — govern the determination of whether there is “room” for potential new entrants.

About the Long-Run

Such short-term thinking weakens the institutions that pursue it. As Professor Sutton observes: “We looked at every peer reviewed study we could find, and in every one when there was a bigger difference between the pay at of the people at the bottom and the top there was worse performance.”

That’s understandable. After all, workers behave according to signals that leadership sends down the food chain. Dissent is not a cherished value. Resulting self-censorship means the king and the members of his court hear only what they want to hear. People inside the organization who want to advance become cheerleaders who suppress bad news. Being a team player is the ultimate compliment and the likeliest path to promotion.

One More Thing

Bezos’ letter to his employees about the Times article encourages anyone who knows of any stories “like those reported…to escalate to HR.” He says that he doesn’t recognize the Amazon in the article and “very much hopes you don’t, either.”

One former employee frames Bezos’ unstated conundrum correctly: “How do you possibly convey to your manager the intolerable nature of your working conditions when your manager is the one telling you, point blank, that the impossible hours are simply what’s expected?”

Note to Jeff B: Escalating to HR won’t eliminate embedded cultural attitudes.

Then again, maybe I’m wrong about all of this. On the same day the Times published its piece on the increasingly harsh law firm business model, the Wall Street Journal ran Harvard Law School Professor Mark J. Roe’s op-ed: “The Imaginary Problem of Corporate Short-Termism.”

It’s all imaginary. That should come as a relief to those working inside law firms and businesses that focus myopically on near-term results without regard to the toll it is taking on the young people who comprise our collective future.

ABOUT SANDRA BLAND’S DEADLY ENCOUNTER

“She had been pulled over for failing to signal a lane change.” — The New York Times, July 16, 2015

That’s the most important line in the Sandra Bland story. And it has become lost in the controversy over whether her July 13 death in a Waller County Texas jail cell was suicide. Attention now focuses on her mental state and the marks on her body. But everyone should be taking a closer look at officer Brian T. Encinia and why he stopped Bland in the first place.

Context and Cast of Characters

Bland was black; Encinia is white; Waller County has a notorious history of racism. Encinia was patrolling what The New York Times called “a sleepy state road” that leads from the highway to the entrance of Prairie View A&M University, where more than 80 percent of students are black. In 2004, the district attorney threatened to prosecute Prairie View students from other counties who tried to vote in Waller County. Students and the state’s Republican attorney general thwarted his illegal voter suppression effort.

Bland, a suburban Chicago native, graduated from Prairie View A&M in 2008 and returned to Chicago. On July 10, she accepted a job working with students at her alma mater. Youthful optimism notwithstanding, Bland must have known that she was re-entering hostile territory.

Encinia is 30 years old and has been a Texas state trooper for 19 months. According to a now-deleted Linked-In profile, he took a circuitous route to law enforcement. In 2008, he graduated from Texas A&M University with a degree in agricultural leadership and development. Then he joined Blue Bell Creameries where he left his position as an ingredient processing supervisor in 2014. (Blue Bell is now infamous for the nationwide listeria-related recall of its ice cream.) He also worked at the Brenham (TX) Fire Department.

Disturbing Details

A detailed examination of the complete 47-minute dash-cam video from Encinia’s squad car tells far more than the short excerpts airing on television. For starters, Bland’s car had Illinois license plates. To a white local cop in many places throughout America, she was a black out-of-towner worthy of presumptive suspicion.

Also noteworthy is the principal feature of the four-lane road on which Bland drove: it’s desolate. What constructive police work could possibly occupy Encinia’s time there? During the first 15 minutes of the video, only 36 vehicles passed in her direction. Two of them made illegal u-turns — without signaling — and continued on their way.

Through the Looking Glass

After Encinia pulled Bland over, he walked to the passenger side of her car and their interaction began:

Encinia: Hello ma’am. We’re the Texas Highway Patrol and the reason for your stop is because you failed to signal the lane change. Do you have your driver’s license and registration with you? What’s wrong? How long have you been in Texas?

Timeout #1

“How long have you been in Texas?” Encinia’s early question supports my “black driver, out-of-state plate, pull-‘er-over” hypothesis.

Back Through the Looking Glass

Bland: Got here just today.

Encinia: OK. Do you have a driver’s license? (Pause) OK, where you headed to now? Give me a few minutes.

Encinia walked back to his squad car. After making Bland wait a full five minutes, he returned to the driver’s side of her car and said, “OK, ma’am. You OK?”

Bland: I’m waiting on you. This is your job. I’m waiting on you. When’re you going to let me go?

Encinia: I don’t know, you seem very irritated.

Bland: I am. I really am. I feel like it’s crap what I’m getting a ticket for. I was getting out of your way. You were speeding up, tailing me, so I move over and you stop me. So yeah, I am a little irritated, but that doesn’t stop you from giving me a ticket, so [inaudible] ticket.

Timeout #2

According to Bland, she was changing lanes to get out of the way of Encinia’s speeding squad car as it approached her car. For that, Encinia pulls her over? Who signals while changing lanes to clear the path for a police car, fire truck or emergency vehicle approaching quickly from behind? Who signals when making a lane change when there are no other cars in sight?

Back Through the Looking Glass 

Encinia: Are you done?

Bland: You asked me what was wrong, now I told you.

Encinia: OK.

Bland: So now I’m done, yeah.

Encinia: You mind putting out your cigarette, please? If you don’t mind?

Bland: I’m in my car, why do I have to put out my cigarette?

Encinia: Well you can step on out now.

Timeout #3

It’s lawful to smoke in your own car. In fact, I assume Texans’ zeal for individual liberty makes it especially permissible in that state to smoke in your own car — perhaps while cleaning your gun.

Encinia didn’t answer Bland’s question because he couldn’t. There was no legal basis for his request, unless he thought she might use the cigarette as a weapon against him.

Back Through the Looking Glass

Bland: I don’t have to step out of my car.

Encinia: Step out of the car.

Bland: Why am I …

Encinia: Step out of the car!

Bland: No, you don’t have the right. No, you don’t have the right.

Encinia: Step out of the car.

Bland: You do not have the right. You do not have the right to do this.

Encinia: I do have the right, now step out or I will remove you.

Timeout #4

Encinia became defensive about Bland’s denial of a request for which he had no lawful justification (“Would you mind putting out your cigarette, please? If you don’t mind?”). So he bullied his way into an escalation of the conflict with a new demand (“Step out of the car”). With stunning speed, he lost his temper and started yelling.

The current focus on Bland’s mental history is misplaced; someone should investigate signs of anger, aggressiveness, racism, and generally inappropriate behavior in Encinia’s past. Even more pointedly, it’s worth scrutinizing the process that qualifies someone to become a “peace” officer for the Texas Highway Patrol.

One of my friends specializes in criminal law. Here’s what he tells black clients and friends: if you’re subject to a routine police stop in a white neighborhood, remain in your car so the policeman doesn’t perceive your act of getting out as aggressive. Perhaps Bland had received similar legal advice. Still, once policeman asks you to get out of your car, it’s wise to obey.

Back Through the Looking Glass

Bland: I refuse to talk to you other than to identify myself. [crosstalk] I am getting removed for a failure to signal?

Encinia: Step out or I will remove you. I’m giving you a lawful order. Get out of the car now or I’m going to remove you.

Bland: And I’m calling my lawyer.

Encinia: I’m going to yank you out of here. (Reaches inside the car.)

Bland: OK, you’re going to yank me out of my car? OK, alright.

Encinia (calling in backup): 2547.

Bland: Let’s do this.

Encinia: Yeah, we’re going to. (Grabs for Bland.)

Bland: Don’t touch me!

Encinia: Get out of the car!

Bland: Don’t touch me. Don’t touch me! I’m not under arrest — you don’t have the right to take me out of the car.

Encinia: You are under arrest!

Bland: I’m under arrest? For what? For what? For what?

Timeout #5

Encinia didn’t have an answer to her question. As described below, he and a colleague eventually developed one after the incident was over. But Bland knew her constitutional rights, even though Encinia never explained them to her.

Back Through the Looking Glass

A few minutes later, Bland was on the ground and in handcuffs as their exchange continued:

Encinia: You were getting a warning, until now you’re going to jail.

Bland: I’m getting a — for what? For what?

Encinia: You can come read.

Bland: I’m getting a warning for what? For what!?

Encinia then showed her the ticket.

Encinia: Come read right over here. This right here says ‘a warning.’ You started creating the problems.

Timeout #6

After Encinia extracted Bland forcibly from her car without telling her why, wrestled her to the ground, and placed her in handcuffs, he finally revealed that she was just going to get a warning for her supposed failure to signal a lane change. That’s astonishing. If Bland had lived to file a lawsuit against Encinia, she should have won.

Getting His Story Straight

After the incident was over, Encinia spoke with someone on his radio (presumably a supervisor) as they developed an underlying theory to justify his behavior:

“I tried to de-escalate her. It wasn’t getting anywhere, at all. I mean I tried to put the Taser away. I tried talking to her and calming her down, and that was not working….

“Evading arrest or detention. (Inaudible). Resisting arrest … She was detained. That’s the key and that’s why I am calling and asking because she was detained. That’s when I was walking her over to the car, just to calm her down and just to (say) stop.

“That’s when she started kicking. I don’t know if it would be resist or if it would be assault. I kinda lean toward assault versus resist because I mean technically, she’s under arrest when a traffic stop is initiated, as a lawful stop. You’re not free to go. I didn’t say you’re under arrest, I never said, you know, stop, hands up.

“Correct, that did not occur. There was just the assault part…

“Like I said, with something like this, I just call you immediately, after I get to a safe stopping point.

“No weapons, she’s in handcuffs. You know, I took the lesser of the uhh … I only took enough force as I — seemed necessary. I even de-escalated once we were on the pavement, you know on the sidewalk. So I allowed time, I’m not saying I just threw her to the ground. I allowed time to de-escalate and so forth. It just kept getting. (Laughing) Right, I’m just making that clear.”

Sickening and Sad

All of this suggests obvious questions that no one is asking:

— When did Bland fail to signal the lane change that caused Encinia to pull her over?

— Why did Encinia ask Bland to get out of her car? Because she kept smoking her cigarette after he asked her to stop?

— Shortly before Encinia first told Bland that she was under arrest, he grabbed her. But she hadn’t touched him. What was the charge for which he first said he was arresting her?

— What justified Encinia in forcibly removing Bland from her car? Her refusal to obey his dubious order that she get out on her own after refusing to extinguish her cigarette?

— What made Encinia laugh while he was on the car radio as a fellow officer on the scene told Bland she was under arrest for assault on a public servant — the only charge ever lodged against her?

Let’s hope Encinia is under oath when he provides the answers. The testimony of the person who caused him to laugh over the radio should be interesting, too.

Three days later, Sandra Bland was dead. No one is laughing now.

THE DEWEY TRIAL: TRUTH, JUSTICE, OR NEITHER?

[NOTE: My recent post, “Cravath Gets It Right, Again,” was a BigLaw Pick of the Week.]

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“Not all the evidence that you hear and see will be riveting,” said Steve Pilnyak last Tuesday as he opened the prosecution’s case against three former leaders of the now-defunct Dewey & LeBoeuf. The judge warned jurors that they will probably be there past Labor Day. The antagonists will present dueling views of what the New York Times called “arcane accounting treatments and year-end adjustments” three years before Dewey’s collapse. As you read between the yawns, watch to see if the trial leaves the most important questions about the final days of a storied firm unanswered.

Victims?

The prosecution’s case requires victims. It settled on insurance companies who bought the firm’s bonds in 2010 and big banks that lent the firm money for years. We’ll see how that plays, but it’s difficult to imagine aggrieved parties that would generate less juror sympathy than insurers and Wall Street bankers. Then again, rich lawyers aren’t exactly the most desirable defendants, either.

The prosecution’s cooperating witnesses will take the stand to explain what it calls a “Master Plan” of accounting adjustments that are the centerpiece of the case. The battle of experts over those adjustments is more likely to induce sleep than courtroom fireworks.

Villains?

If you think former firm chairman Steven Davis and his two co-defendants, Stephen DiCarmine and Joel Sanders, are the only villains in this saga, you’re allowing the trees to obscure a view of the forest. In that respect, the trial will fail at its most fundamental level if it doesn’t address a central question in the search for justice among Dewey’s ruins: Who actually received — and kept — the hundreds of millions of dollars that entered the firm’s coffers as a result of the allegedly fraudulent bond offering and bank loans?

As the firm collapsed in early 2012, it drew down tens of millions of dollars from bank credit lines while simultaneously distributing millions to Dewey partners. As I’ve reported previously, during the five months from January to May 2012 alone, a mere 25 Dewey partners received a combined $21 million. Are they all defendants in the Manhattan District Attorney’s criminal case? Nope. Will we learn the identity of those 25 partners, as well was the others who received all of that borrowed money? I hope so.

Shortly after those 2012 distributions, Wall Street Journal reporters asked former Dewey partner Martin Bienenstock whether the firm used those bank loans to fund partner distributions. Bienenstock replied, “Look, money is fungible.”

It sounds like his answer to the question was yes.

Unwitting Accomplices?

With respect to the proceeds from Dewey’s $150 million bond offering, the picture is murkier, thanks to protective cover from the bankruptcy court. When Judge Martin Glenn approved a Partner Contribution Plan, he capped each participating partner’s potential financial obligation to Dewey’s creditors at a level so low that unsecured creditors had a likely a recovery of only 15 cents for every dollar the firm owed them. That was a pretty good deal for Dewey’s partners.

But here’s the more important point. As it approved that deal, the court did not require the firm to reveal who among Dewey’s partners received the $150 million bond money. In calculating each partner’s required contribution to the PCP, only distributions after January 1, 2011 counted. The PCP excluded consideration of any amounts that partners received in 2010, including the bond money. That meant they could keep all of it.

In light of the bankruptcy code‘s two-year “look back” period, that seemed to be a peculiar outcome. Under the “look back” rule, a debtor’s asset transfers to others within two years of its bankruptcy filing are subject to special scrutiny that is supposed to protect against fraudulent transfers.

Dewey filed for bankruptcy on May 28, 2012. The “look back” period would have extended all the way to May 28, 2010 — thereby including distributions of the bond proceeds to partners. Which partners received that money and how much did they get? We don’t know.

Connecting Dots

As the firm’s death spiral became apparent, a four-man office of the chairman — one of whom was Bienenstock — took the leadership reins from Steven Davis in March 2012. A month later, it fired him. In an October 12, 2012 Wall Street Journal interview, Bienenstock described himself as part of a team that, even before the firm filed for bankruptcy, came up with the idea that became the PCP. He called it an “insurance policy” for partners.

Taking Bienenstock’s “money is fungible” and “insurance policy” comments together leads to an intriguing hypothetical. Suppose that a major management objective during the firm’s final months was to protect distributions that top partners had received from the 2010 bond offering. Suppose further that in early 2012 some of those partners also received distributions that the firm’s bank loans made possible. Finally, suppose that those partners used their bank loan-funded distributions to make their contributions to the PCP — the “insurance policy” that absolved them of Dewey’s obligations to creditors.

When the complete story of Dewey gets told, the end game could be its climax. It could reveal that a relatively few partners at the top of the firm won; far more partners, associates, staff, and creditors lost.

Or maybe I’m wrong and the only villains in this sad saga are the three defendants currently on trial. But I don’t think so.

CRAVATH GETS IT RIGHT, AGAIN

 

biglaw-450The focus of The American Lawyer story about Richard Levin’s departure after eight years at Cravath, Swaine & Moore understates the most important point: Levin is a living example of things that his former firm, Cravath, does right. I can count at least three.

#1: Top Priority — Client Service

Cravath hired Levin, a top bankruptcy lawyer, from Skadden, Arps, Slate, Meagher & Flom on July 1, 2007. At the time, Cravath didn’t have a bankruptcy/restructuring practice. But at the beginning of the downturn that would become the Great Recession, its clients were drawn increasingly into bankruptcy proceedings.

Explaining the firm’s unusual decision to hire Levin as a lateral partner, the firm’s then-deputy presiding partner C. Allen Parker told the New York Times that “the firm was seeking to serve its clients when they found themselves as creditors. Many of Cravath’s clients have landed on creditors’ committees in prominent bankruptcy cases, he said, and the firm has helped them find another firm as bankruptcy counsel.”

In other words, Cravath sought to satisfy specific client needs, not simply recruit a lateral partner who promised to bring a book of business to the firm. The Times article continued, “While Mr. Parker does not foreclose the chance of representing debtors — which is often considered the more lucrative side of the bankruptcy practice — for now, it is an effort to serve clients who are pulled into the cases.”

#2: Mandatory Retirement Age

It seems obvious that Levin’s upcoming birthday motivated his departure to Jenner & Block. Less apparent is the wisdom behind Cravath’s mandatory retirement rule. As The American Lawyer article about his move observes:

“[A]t 64, Levin is now approaching Cravath’s mandatory retirement age. And he says he’s not ready to stop working. ’65 is the new 50,’ Levin says. ‘I’d be bored. I love what I do [and] I want to keep doing it.'”

Well, 65 is not the new 50 — and I say that from the perspective of someone who just celebrated his 61st birthday. More importantly, sophisticated clients understand that a law firm’s mandatory retirement age benefits them in the long run because it makes that firm stronger. When aging senior partners preside over an eat-what-you-kill big law compensation system, their only financial incentive is to hang on to client billings for as long as possible. It creates a bad situation that is getting worse.

Recent proof comes from the 2015 Altman Weil “Law Firms in Transition” survey responses of 320 law firm managing partners or chairs representing almost half of the Am Law 200 and NLJ 350. I’ll have more to say about other results in future posts, but for this entry, one of the authors, Eric Seeger, offered this especially pertinent conclusion about aging baby boomers:

“That group of very senior partners aren’t retiring,” he explains.

Seeger went on to explain that even if they were, younger partners are not prepared to assume client responsibilities. Why? Because older partners don’t want that to happen. According to the Altman Weil survey, only 31 percent of law firm leaders said their firms had a formal succession planning process.

At Cravath, mandatory retirement works with the firm’s lock-step compensation structure to encourage much different behavior. Aging partners confront an end date that provides them with an incentive to train junior attorneys so they can assume client responsibilities and assure an orderly intergenerational transition of the firm’s relationships. Hoarding clients and billings produces no personal financial benefit to a Cravath partner.

In contrast, hoarding is a central cultural component of eat-what-you-kill firms. Individual partners guard clients jealously, as if they held proprietary interests in them. Internal partnership fights over billing credit get ugly because a partner’s current compensation depends on the allocations. Partners have learned that the easiest way to avoid those fights is to keep their clients in silos away from other partners. For clients, it can mean never meeting the lawyer in the firm who could be most qualified to handle a particular matter. If they understood the magnitude of the problem, most clients would be astonished and outraged.

#3: Strategic Thinking

With respect to Richard Levin’s practice area, the most recent Georgetown/Thomson Reuters Peer Monitor Report notes that in 2014 big firm bankruptcy practices suffered a bigger drop in demand than any other area. Lawyers who had billed long hours to big ticket bankruptcy matters have now been repurposed for corporate, transactional, and even general litigation tasks. Don’t be surprised as firms announce layoffs.

Cravath’s timing may have been fortuitous. It hired Levin at the outset of the Great Recession — just as a big boom time for bankruptcy/restructuring lawyers began. Likewise, Levin departs as that entire segment of the profession now languishes. I think Cravath’s leaders are too smart to think that they can time the various segments of the legal market. But the firm’s strategic approach to its principal mission — client service — caused it to do the right things for the right reasons.

The harder they work at that mission, the luckier they get.

ANOTHER COLOSSAL LATERAL MISTAKE

Lateral hires are risky. Even managing partners responding to the Hildebrandt/Citi 2015 Client Advisory’s confidential survey admitted that only about half of their lateral partners are break-even at best — and the respondents had unrestrained discretion to decide what qualified as “break-even.” As Ed Newberry, co-global managing partner of Squire Patton Boggs told Forbes, “[L]ateral acquisitions, which many firms are aggressively pursuing now … is a very dangerous strategy because laterals are extremely expensive and have a very low success rate….”

Beyond the financial perils, wise firm leaders understand that some lateral partners can have an even greater destructive impact on a firm’s culture. In late 2014, former American Lawyer editor-in-chief Aric Press interviewed Latham’s outgoing chairman Bob Dell, who was retiring after a remarkably successful 20-year run at the top of his firm. Dell explained that he walked away from prospective lateral partners who were not a good cultural fit because they stumbled over Latham’s way of doing things.

Press wrote: “Culture, in Dell’s view, is not a code word for soft or emotional skills. ‘We think we have a high-performance culture,’ he says. ‘We work at that. That’s not soft.'”

Under the Radar and Under the Rug

Most lateral hiring mistakes attract little public attention. Firm leaders have no reason to highlight their errors in judgment. Fellow partners are reluctant to tell their emperors any unpleasant truth. If, as the adage goes, doctors bury their mistakes and lawyers settle theirs, then managing partners pretend that their mistakes never happened and then challenge anyone to prove them wrong. The resulting silence within most partnerships is deafening.

Every once in a while, a lateral hire becomes such a spectacular failure that even the press takes note. When that happens, the leaders of the affected law firm have nowhere to hide. Which takes us to James Woolery, about whom I first wrote five years ago.

Without mentioning Woolery specifically, I discussed a May 28, 2010 Wall Street Journal article naming him was one of several Cravath, Swaine & Moore partners in their late-30s and early-40s taking “a more pro-active approach, building new relationships and handling much of the work that historically would have been taken on by partners in their 50s.”

“We’re more aggressive than we used to be,” 41-year-old Cravath partner James Woolery told the Journal. “This is not your grandfather’s Cravath.”

A Serial Lateral

Six months later, it wasn’t Woolery’s Cravath, either. He’d already left to co-head J.P. Morgan Chase’s North American mergers and acquisitions group.

In 2013, only two years after accepting the Chase job, Woolery moved again. With much fanfare, he negotiated a three-year deal guaranteeing him at least eight million dollars annually to join Cadwalader, Wickersham & Taft. How was the cultural fit? The firm’s chairman, Chris White, described him as “the epitome of the Cadwalader lawyer” who deserved the lucrative pay package that made him the firm’s highest paid partner. A new title created especially for Woolery — deputy chairman — also made clear that he was White’s heir apparent.

To no one’s surprise, in 2014 Cadwalader announced that Woolery would take over as chairman in early 2015. As he prepared to assume the reins of leadership, the firm took a dramatic slide. The current issue of The American Lawyer reports that Cadwalader posted the worst 2014 financial results of any New York firm. Woolery’s guarantee deal looked pretty good as his firm’s average partner profits dropped by more than 15 percent. The firm’s profit margin — 26 percent — placed it 87th among Am Law 100 firms.

On January 19, 2015, the firm’s managing partner, Patrick Quinn, convened a conference call with all Cadwalader partners to convey a stunning one-two punch: Woolery would not become chairman, and he was leaving the firm to start a hedge fund. Woolery was not on the call to explain himself.

Unpleasant Press

No law firm wants this kind of attention. No client wants its outside firm to project uncertainty and instability at the top. No one inside the firm wants to hear about someone who has now been “thrust into the role of designated chairman of the firm,” as The American Lawyer described Patrick Quinn.

Woolery is gone, and so is Chris White, the former Cadwalader chairman who sold fellow partners on Woolery and his stunning guaranteed compensation package. White, age 63, left the firm in November to become co-CEO of Phoenix House, the nation’s largest non-profit addiction rehabilitation center.

Meanwhile, newly designated Cadwalader chairman Quinn says that the firm has no plans to change its strategy, including its reliance on lateral partner hiring. Maybe Chris White can use his new job to help Quinn and other managing partners shake their addiction to laterals. Apparently, first-hand experience with failure isn’t enough.

THINKING BEYOND THE AM LAW 100 RANKINGS

It’s Am Law 100 time. Every year as May 1 approaches, all eyes turn to Big Law’s definitive rankings — The American Lawyer equivalent of the Sports Illustrated swimsuit issue. But behind those numbers, what do law firm leaders think about their institutions and fellow partners?

The 2015 Citibank/Hildebrandt Client Advisory contains some interesting answers to that question. Media summaries of those annual survey results tend to focus on macro trends and numbers. Will demand for legal services increase in the coming months? Are billable hours up? Will equity partner profits continue to rise? Will clients accept hourly rate increases? Or will client discounts reduce realizations?

Those are important topics, but some of the survey’s best nuggets deserve more attention than they get. So as big law firm partners everywhere pore over the annual Am Law 100 numbers, here are five buried treasures from this year’s Citibank/Hildebrandt Client Advisory that will get lost in the obsession over Am Law’s short-term growth and profits metrics. They may reveal more about the state of Big Law than any ranking system can.

Chickens Come Home To Roost

1. “While excess capacity remains an issue, we are hearing from a good number of firms that mid-level associates are in short supply.”

My comment: After 2009, most firms reduced dramatically summer programs and new associate hiring to preserve short-term equity partner profits. That was a shortsighted failure to invest in the future, and it’s still pervasive. See #4 and #5 below.

The Growth Trap

2. “Many [law firm mergers] have tended to be mergers of strong firms with weaker firms, or mergers of firms that are pursuing growth for growth’s sake. On this latter trend, it is our view that these mergers are generally ill-conceived. In our experience, combining separate firm revenues does not necessarily translate into better profit results and long-term success.”

My comment: Regardless of who says it (or how often), many managing partners just don’t believe it.

The Lateral Hiring Ruse

3. “For all the popularity of growth through laterals, the success rate of a firm’s lateral strategy can be quite low. For the past few years, we have asked leaders of large firms to quantify the rate of success of the laterals they hired over the past five years. Each year, the proportion of laterals who they would describe as being above ‘break even’, by their own definition, has fallen. In 2014, the number was just 54 percent of laterals who had joined their firms during 2009-2013.” [Emphasis added]

My comment: Think about that one. The survey allows managing partners to use their own personal, subjective, and undisclosed definition of “success.” Even with that unrestricted discretion to make themselves look good, firm leaders still admit that almost half of their lateral hiring decisions over the past five years have been failures — and that they’re track record has been getting worse! That’s stunning.

Pulling Up The Ladder

4. “We are now seeing [permanent non-partner track associates and other lower cost lawyers] appear among some of the most elite firms. When we ask these firms whether they are concerned that expanding their lawyer base beyond partner-track associates will hurt their brand, their response is simply that this is what their clients, and the market in general demands.”

My comment: At best such managing partner responses are disingenuous; at worst they are lies. Clients aren’t demanding non-partner track attorneys; they’re demanding more value from their outside lawyers. Thoughtful clients understand the importance of motivating the next generation’s best and brightest lawyers with meaningful long-term career opportunities.

Permanent dead-end tracks undermine that objective. So does the continuing trend in many firms to increase overall attorney headcount while keeping the total number of equity partners flat or declining. But rather than accept responsibility for the underlying greed that continues to propel equity partner profits higher, law firm leaders try to blame clients and “the market.” For the truth, they should consult a mirror.

The Real Problem

5. “Leaders of successful firms also talk about getting their partners to adopt a more long-term, ‘investment’ mindset. In an industry where the profits are typically paid out in a short time to partners, rather than being retained for longer term investment, this can be a challenge.”

My comment: Thinking beyond current year profits is the challenge facing the leadership of every big firm. Succeeding at that mission is also the key assumption underlying the Client Advisory’s optimistic conclusion:

“It is clear to us that law firms have the capacity and the talent to adapt to the needs of their clients, and meet the challenges of the future — contrary to those who continually forecast their death.”

I’m not among those forecasting the death of all big firms. In fact, I don’t know anyone who is. That would be silly. But as in 2013 and 2014, some large firms will fail or disappear into “survival mergers.” As that happens, everyone will see that having what the Client Advisory describes as “the capacity and talent to adapt” to the profession’s dramatic transformation is not the same as actually adapting. The difference will separate the winners from the losers.

DENTONS STRIKES AGAIN

[NOTE: Beginning April 16 and continuing through April 20, Amazon is running a promotion for my novel, The Partnership. During that period, you can get the Kindle version as a FREE DOWNLOAD. Recently, I completed negotiations to develop a film version of the book.]

Dentons must have a large support staff whose only job is to introduce the firm’s new partners to each other. Three months ago, it joined with the massive China-based Dacheng to create the world’s largest law firm — or whatever it is. Now McKenna Long & Aldridge’s partners will merge their 420 lawyers into the Dentons North American verein.

Well, not all 420 lawyers because, as McKenna Long’s chairman Jeffrey Haidet told the Daily Report, “There will probably be some fallout from the legacy partnership. It’s unfortunate….”

There’s nothing unfortunate about the deal for Haidet, whose personal “fallout” will make him co-CEO in Dentons-US.

Eliminating The Opposition

Haidet tried to make this deal in 2013, but according to the Daily Report, it collapsed when a few key McKenna Long partners balked over concerns about losing the McKenna identity and name. The currently prevailing big law firm business model doesn’t value such dissent. So it’s no surprise that during 2014 McKenna Long lost a greater percentage of its partners (22.3 percent) than any other Am Law 200 firm.

Haidet told the American Lawyer that some of his firm’s record-setting 59 departures last year “were of partners who disagreed with the firm’s growth strategy.” That’s not surprising either, since that strategy apparently involved extinguishing the firm itself. A venerable Atlanta institution that is also highly regarded for its Washington, DC government contracts and policy work will soon disappear.

What’s Next?

If and when McKenna Long releases its financial results for 2014, the underlying motivations behind Haidet’s renewed discussions with Dentons may become clearer. Perhaps the firm’s financial performance limited its options. But this much is obvious: Compared with McKenna Long’s earlier focus that gave it a clear identity, the partners who survive this transaction will join an organization that has an open-ended goal, namely, getting bigger.

Dentons’ global CEO Elliott Portnoy told the Wall Street Journal, “There is no logical end.” That echoed global chair Joseph Andrew’s remarks in an earlier article: “We compete with everyone. We compete with the largest law firms in the world and the smallest law firms.” Combine those two thoughts from the top of Dentons’ leadership team and it sounds like an effort to be all things to any and all potential clients.

“We’re going to be driven by our strategy,” Portnoy told the Journal. Even so, it looks like the strategy is growth for the sake of growth — a dangerous path. But as Andrew put it, they’re out to prove everybody else wrong about the perils of that approach: “What we’re trying to do is to take these myths that have gathered in the legal profession and say (they’re) not true.”

The Evidence Speaks

Andrew and Portnoy are fighting more than “myths.” Last year, the 2014 Georgetown/Thomson Reuters Peer Monitor Report on the Legal Profession devoted most of its annual report to the folly of growth alone as a business strategy. It begins by debunking the argument that increased size means economies of scale and cost savings:

“[O]nce a firm achieves a certain size, diseconomies of scale can actually set in. Large firms with multiple offices — particularly ones in multiple countries — are much more difficult to manage than smaller firms. They require a much higher investment of resources to achieve uniformity in quality and service delivery and to meet the expectations of clients for efficiency, predictability, and cost effectiveness. They also face unique challenges in maintaining collegial and collaborative cultures, particularly in the face of rapid growth resulting from mergers or large-scale lateral acquisitions.”

In addition to the quality and cultural issues discussed in my February post on the Dacheng deal, Dentons’ expanding administrative structure prompts this question: How many CEOs can a law firm have at one time? In addition to global CEO Portnoy and global chairman Andrew, Haidet will join four other current Dentons CEOs. Additional senior management will result from implementing the Dacheng deal.

Turning to the key question, the Georgetown Report notes, “[G]rowth for growth’s sake is not a viable strategy in today’s legal market. The notion that clients will come if only a firm builds a large enough platform or that, despite obvious trends toward the disaggregation of legal services, clients will somehow be attracted to a ‘one-stop shopping’ solution is not likely a formula for success.”

Compare that analysis to the Wall Street Journal’s summary of Dentons’ strategic plan: “[T]he firm hopes to become a one-stop shop for big corporations and small businesses alike.”

A Distraction?

The Georgetown Report’s most intriguing suggestion is that a law firm’s pursuit of indiscriminate growth can mask a failure of true leadership:

“Strategy should drive growth and not the other way around. In our view, much of the growth that has characterized the legal market in recent years fails to conform to this simple rule and frankly masks a bigger problem — the continuing failure of most firms to focus on strategic issues that are more important for their long-term success than the number of lawyers or offices they may have.”

As a way for law firm leaders to convince their partners that they have a strategic vision, the Report continues, growth is “a more politically palatable than a message that we need to fundamentally change the way we do our work.”

Drawing an analogy to Amity Police Chief Martin Brody’s line (delivered by Roy Scheider) in the movie Jaws, the Georgetown Report concludes, “For most firms…the goal should be not to ‘build a bigger boat’ but rather to build a better one.”

Dentons has already built an enormous boat and, as Portnoy said, “There is no logical end.” Someday soon we’ll know if it’s a better boat, and whether it even floats.

A NEW YORK TIMES COLUMN MISFIRES

My unwelcome diagnosis and resulting detour into our dysfunctional medical system diverted my attention from scrutinizing commentators who make dubious assertions about the current state of the legal profession.

Well, I’m back for this one. At first, I thought that Professor Steven Davidoff Solomon’s article in the April 1 edition of the New York Times, “Despite Forecasts of Doom, Signs of Life in the Legal Industry,” was an April Fool’s joke. But the expected punch line at the end of his essay never appeared.

To keep this post a manageable length, here’s a list of points that Solomon got wrong in his enthusiastic account of why the legal industry is on the rise. As a professor of law at Berkeley, he should know better.

  1. “The top global law firms ranked in the annual AmLaw 100 survey experienced a 4.3 percent increase in revenue in 2013 and a 5.4 percent increase in profit.”

That’s true. But it doesn’t support his argument that new law graduates will face a rosy job market. Increased revenue and profits do not translate into increased hiring of new associates. In most big firms, profit increases are the result of headcount reductions at the equity partner level – which have been accelerating for years.

  1. “Bigger firms are hiring.”

Sure, but nowhere near the numbers prior to Great Recession levels. More importantly, big firms comprise only about 15 percent of the profession and hire almost exclusively from the very top law schools. Meanwhile, overall employment in the legal services sector is still tens of thousands of jobs below its 2007 high. Even as recently December 2014, the number of legal services jobs had fallen from the end of 2013.

  1. “Above the Law, a website for lawyers, recently reported a rising trend for lateral moves for lawyers in New York.”

Apples and oranges. The lateral partner hiring market — another big law firm phenomenon that has nothing to do with most lawyers — is completely irrelevant to job prospects for new entry-level law school graduates. Even during the depths of the Great Recession, the former was hot. The latter continues to languish.

  1. “Last year, 93.2 percent of the 645 students of the Georgetown Law class of 2013 were employed.”

That number includes: 83 law school-funded positions, 12 part-time and/or short-term jobs, and 51 jobs not requiring a JD. Georgetown’s full-time, long-term, non-law school-funded JD-required employment rate for 2013 graduates was 72.4 percent – and Georgetown is a top law school. The overall average for all law schools was 56 percent.

  1. “[Michael Simkovic and Frank McIntyre found that a JD degree] results in a premium of $1 million for lawyers over their lifetime compared with those who did not go to law school.”

Simkovic acknowledges that their calculated median after-tax, after-tuition lifetime JD premium is $330,000. More fundamentally, the flaws in this study are well known to anyone who has followed that debate over the past two years. See, e.g., Matt Leichter’s two-part post beginning at https://lawschooltuitionbubble.wordpress.com/2013/09/09/economic-value-paper-a-mistrial-at-best/, or the summary of my reservations about the study here: https://thelawyerbubble.com/2013/09/03/once-more-on-the-million-dollar-jd-degree/. Most significantly, it ignores the fact that the market for law school graduates is really two markets — not unitary. Graduates from top schools have far better prospects than others. But the study admittedly takes no account of such differences.

  1. “[The American Bar Foundation’s After the JD] study found that as of 2012, lawyers had high levels of job satisfaction and employment as well as high salaries.”

It also found that by 2012, 24 percent of the 3,000 graduates still responding to the study questionnaire are no longer practicing law. The study’s single class of 2013 originally included more than 5,000 — so no one knows what the non-respondents are doing.

“These are the golden age graduates,” said American Bar Foundation faculty fellow Ronit Dinovitzer [one of the study’s authors], “and even among the golden age graduates, 24 percent are not practicing law.”

7.  “Law schools have tremendous survival tendencies. I have a bet with Jordan Weissmann at Slate that not a single law school will close.”

Yes. Those “survival tendencies” are called unlimited federal student loans for which law schools have no accountability with respect to their students employment outcomes. If Solomon wins that bet, it will be because a dysfunctional market keeps alive schools that should have closed long ago.

Whatever happened to the News York Times fact-checker?

ASIA: ONE FIRM GOES BIG WHILE ANOTHER GOES HOME

The contrasting headlines are striking. Two days after Fried Frank announced that it was pulling out of Asia, Dentons revealed that its partners had voted to jump in — big time. A week later, a ceremony that looked like a treaty-signing marked the combination of Dentons with Asia’s largest law firm, Dacheng Law Offices. The result is now a 6,600-lawyer behemoth.

A Big Bet

Dacheng and Dentons share some things in common. Both firms are themselves products of rapid inorganic growth. Dacheng was founded in 1992. Its website now boasts more than 4,000 lawyers worldwide.

Dentons resulted from transactions that combined four law firms — Sonnenschein, Nath & Rosenthal, Denton Wilde Sapte (UK), Salans (France), and Fraser Milner Casgrain (Canada) — into an organizational form known as a Swiss verein. Each firm maintains its own profit pool but shares strategy, branding, IT and other core functions. According to its website at the time of the Dacheng deal, 2,600 lawyers carried the “Dentons” brand.

But a brand is not a business, and any brand is only as good as its underlying product. Law firms have a single product to sell: the talent of their personnel. The most important challenge that comes with inorganic growth is maintaining consistent quality. In that regard and perhaps more than any other business, law firms have precious little margin for error.

In responding to anticipated questions on that subject, Dentons global CEO Elliott Portnoy framed the issue, but never really responded to it: “We know our competition will suggest that this dilutes profitability and will raise questions about quality control. But the simple truth is that we’re going to be able to generate more revenue, increase our profitability and position ourselves as a truly multicultural firm.”

The Big Question

Apart from failing to address the quality question, sound bites about multiculturalism don’t answer a central question: What will the culture of the combined organization become?

The practical differences between Dentons and Dacheng are enormous. According to The American Lawyer, average revenue per Dacheng lawyer is $78,000. In the October 2014 America  Lawyer Global 100 listing, Dentons’ RPL was $505,000. Even with separate revenue and profits pools, integrating these two giants will still be something to behold.

For example, the leadership structure of the new entity reads like the fine print on securities filing. The American Lawyer reports:

“The combined firm will also have a Chinese chair, and none of the five vereins will have a majority of board seats. Any single verein can also block a policy it doesn’t agree with. In the combined firm, the global board will be increased from 15 to 19, with five seats for the Chinese verein and the same number for the U.S. verein. Andrew says the future number of Chinese seats will be adjusted according to the verein’s revenue growth. The chair of the global board, which includes all five vereins, will be Peng; Portnoy will remain the firm’s global CEO, and Andrew will continue to be the firm’s outward face as global chair of the combined firm.”

The Big Risk

The principal question that any leader embarking on a merger of equals should ask is: What happens if it fails? Among other things, leadership requires risk management. Anticipating worst-case scenarios might lead to decisions that outsiders view as too conservative. But the downside consequence of failing to consider those scenarios can be fatal. Just ask the former partners of Dewey & LeBoeuf.

In that respect, the nearly simultaneous decision of Fried Frank to exit Asia after a nearly decade-long effort to gain traction there is interesting. That firm’s China entry began in 2006 with lateral hires from Hong Kong. A year later, it opened an office in Shanghai. But it began deliberating the fate of its Asia presence in 2009 before reaching its recent decision to leave.

According to firm chairman David Greenwald “discipline and good business judgment” led the firm to close its China offices. He deserves credit for a tough decision and forceful action. Calling the time of death on any failed effort is never easy.

In commenting to the American Lawyer about Fried Frank’s departure, law firm consultant Peter Zeughauser said, ““Nobody wants to admit defeat, but Fried Frank might be the canary in the mineshaft. China has always been a hard market, and with the local firms getting much stronger and starting to capture the lion’s share, it’s not getting any easier. Some firms will view it as a necessary investment for the future, but for others, it’s just not worth it.”

Different Approaches; Different Outcomes?

Published reports suggest that Fried Frank initially went into China hoping to capitalize on its existing relationships with U.S. clients — including Goldman Sachs and Merrill Lynch. Dentons appears to have a dramatically different strategy: joining forces with the largest of the China-based firms that Zeughauser identified as getting stronger.

Whatever else happens, the leaders of Dacheng-Dentons can say that they once presided over the largest ever lawyer branding experiment. Especially for Dentons, it involves a big bet. For the sake of everyone involved, let’s hope it’s on the right horse.

2015: THE YEAR THAT THE LAW SCHOOL CRISIS ENDED (OR NOT) — PART I

Remember that you read it here first: In 2015, many law school deans and professors will declare that the law school crisis is over. After five years of handwringing, relatively minor curriculum changes at most schools, and no improvement whatsoever in the mechanism for funding legal education, the storm has passed. All is well. What a relief.

The building blocks for this house of cards start with first-year law school enrollment that is now below 38,000 – a level not seen since the mid-1970s when there were 53 fewer law schools. The recent drop in the absolute number of future attorneys seems impressive, but without the context of the demand for lawyers, it’s meaningless in assessing proximity to market equilibrium, which remains far away.

The Search for Demand

To boost the projected demand side of the equation, the rhetoric of illusory equilibrium often turns to the “degrees-awarded-per-capita” argument that Professor Ted Seto of Loyola Law School – Los Angeles floated in June 2013. His premise: “Demand for legal services…probably increases as population increases.”

“Unless something truly extraordinary has happened to non-cyclical demand,” Seto continued, “a degrees-awarded-per-capita analysis suggests that beginning in fall 2015 and intensifying into 2016 employers are likely to experience an undersupply of law grads, provided that the economic recovery continues.”

If only wishing could make it so. The economic recovery did, indeed, continue, but the hoped for increase in attorney demand was nowhere to be found. When Seto posted his analysis, total legal services employment (including non-lawyers) at the end of May 2013 was 1,133,800. At the end of November 2014, it was 1,133,700.

Follow That Dream

Professor Rene Reich-Graefe of Western New England University School of Law relied on a similar per capita approach (among other dubious arguments) to assert that today’s students are about to enter “the most robust legal market that ever existed in this country.” His students sure hope he’s right. Only 49 out of 133 members of the Western New England Law class of 2013 — 37 percent — obtained full-time long-term JD-required jobs within nine months of graduation.

It’s easy to hypothesize that population growth should increase the demand for everything, including attorneys. But it’s more precise to say that population growth is relevant to the demand for attorneys only insofar as such growth occurs among those who can actually afford a lawyer. (The degrees-per-capita argument also ignores the profound ways that technological change has reduced the demand for lawyers across many segments of the profession.)

The ABA and the U. S. Department of Labor’s Bureau Labor Statistics have added two new factors that will feed false optimism in 2015. This post considers the ABA’s unfortunate action. Part II will cover the BLS’s contribution to continuing confusion.

The ABA Misfires Again

Since it began requiring law schools to report detailed employment outcomes for their most recent graduates, the overall full-time long-term JD-required employment rate has hovered around 55 percent (excluding law school-funded jobs). For a long time, the cutoff date for schools to report their most recent graduates’ employment status to the ABA (and U.S. News) has been February 15 following the year of graduation.

Starting with the class of 2014, law schools will get an additional month during which their graduates can try to find jobs before schools have to report class-wide employment results. When the employment status cutoff date moves from February 15 to March 15, the reported FTLT JD-required employment rate will go up. Comparisons with prior year outcomes (nine months after graduation) will be disingenuous, but law deans and professors touting an upswing in the legal job market will make them. Market equilibrium, they will proclaim, has made its way to legal education.

The stated reason for the ABA change was that the February 15 cutoff had an unfair impact on schools whose graduates took the bar exam in states reporting results late in the fall, especially New York and California. Schools in those states, the argument went, suffered lower employment rates solely because their graduates couldn’t secure jobs until they had passed the bar. Another month would help their job numbers.

In July 2013, Professor Deborah Merritt offered powerful objections to the ABA’s proposed change: The evidence does not support the principal reason for the change; moving the cutoff date would impair the ability to make yearly comparisons at a time when the profession is undergoing dramatic transformation; prospective students would not have the most recent employment information as they decide where to send their tuition deposits in April; the change would further diminish public trust in law schools and the ABA. The new March 15 cutoff passed by a 10-to-9 vote.

Watch For Obfuscation

In a few months when the new 10-month employment figures for the class of 2014 show “improvement” over the prior year’s nine-month results, think apples-to-oranges as you contemplate whose interests the ABA is really serving. Consider, too, whether any macroeconomic projections of attorney demand are even probative when there is a huge variation in employment opportunities across law schools.

At 33 law schools (including Western New England School of Law), fewer than 40 percent of 2013 graduates found full-time long-term employment requiring a JD. At most of those schools, the vast majority of students incurred staggering six-figure debt for their degrees. (At Western New England, it was $120,677 for the class of 2013.)

In the some corners of the profession, federal student loan dollars are subsidizing an ugly business.

THE BINGHAM CASE STUDY: PART II

Starting with the introduction, Harvard Law Professor Ashish Nanda’s case study on Bingham McCutchen depicts Jay Zimmerman as the architect of the firm’s evolution “from a ‘middle-of-the-road-downtown-pack’ Boston law firm in the early 1990s to a preeminent international law firm by 2010”:

“Zimmerman was elected chairman in 1994. Over the next 15 years, he shepherded the firm through 10 mergers, or ‘combinations’ in the Bingham lexicon, the establishment of 11 new offices, and a ten-fold increase in the firm’s revenues to $800 million… Given its impressive expansion, [journalist Jeffrey] Klineman said, ‘Bingham McCutchen has shown it could probably open an office on the moon.'” (p. 1)

Harvard published the study in September 2011.

Another Case Study

Ten months later, Nanda released another case study, “The Demise of Howrey” — a firm that was dying as he considered Bingham. Interestingly, several footnotes in the Howrey study refer to articles explaining how aggressive inorganic growth compromised that firm’s cohesiveness and hastened its collapse. (E.g., “Howrey’s Lessons” by me, ““Why Howrey Law Firm Could Not Hold It Together”, by the Washington Post’s Steven Pearlstein, and “The Fall of Howrey,” by the American Lawyer’s Julie Triedman) But Nanda’s 15-page narrative of Howrey barely mentions that topic.

Instead, he invites consideration of “the alternative paths Howrey, and managing partner Robert Ruyak, might have taken to avoid dissolution of the firm” after that growth had occurred. The abstract concludes with these suggested discussion points:

“What could Howrey have done differently as clients demanded contingency payment plans and deep discounts? Should Ruyak have been more transparent about the financial difficulties the firm faced? Should he have consulted with a group of senior partners instead of relying on the counsel of outside consultants? Is a litigation-focused firm at a disadvantage when it comes to leadership, as compared to a corporate practice? Participants will reflect on the leadership structure of Howrey while discussing issues related to crisis management.”

With all due respect, those inquiries don’t reach a key lesson of Howrey’s (and now Bingham’s) collapse. The following sentence in the study does, but it goes unexplored:

“Howrey continued to add laterals over the concerns of some partners that increased lateral expansion might detract from the firm’s strategic focus and weaken its cultural glue.” (p. 6)

The Metrics Trap

Nanda’s case studies report that at Howrey. as at Bingham, a few key metrics suggested short-term success: revenues soared, equity partner profits increased, and Am Law rankings went up. But beneath those superficially appealing trends was a long-term danger that such metrics didn’t capture: institutional instability. When Howrey’s projected average partner profits dipped to $850,000 in 2009, many ran for the exits and the death spiral accelerated.

Likewise, Bingham’s record high equity partner profits in 2012 of $1.7 million dropped by 13 percent — far less than Howrey’s 2009 decline of 35 percent — to $1.5 million in 2013. But a steady stream of partner departures led to destabilization and a speedy end.

Balancing the Presentation

According to the final sentence of the Bingham case study abstract, “The case allows participants to explore the positives and negatives of following a strategy of inorganic growth in professional service firms….”

The negatives now dwarf the positives. No one should fault Nanda for failing to predict Bingham’s collapse two years later. The most spectacular law firm failures have come as surprises, even to many insiders at such firms. But the Bingham study emphasizes how Zimmerman conquered the challenges of an aggressive growth strategy, with little consideration to whether the overall strategy itself was wise over the long run.

For example:

— The study notes that after Bingham’s 2002 merger with 300-attorney McCutchen Doyle, “Cultural differences…loomed over the combined organization….” But the study goes on to observe, “[T]hese issues did not slow the firm’s growth on the West Coast.” (p. 11) By 2006, “Bingham had achieved remarkable success and unprecedented growth.” (p. 14)

— The study reports that the firm’s American Lawyer associate satisfaction ranking improved from 107 in 2007 to 79 in 2008, which Bingham’s chief human resources officer attributed to “an appreciation for the leadership of the firm. People have confidence in Jay’s competence.” (p. 17). The study doesn’t mention that the firm’s associate satisfaction ranking dropped to 100 in 2009 and to 106 (out of 137) in 2010. (American Lawyer, Sept. 2010, p. 78)

— “Our management committee has people from all over,” the study quotes Zimmerman. “You don’t have to have been at Bingham Dana forever to lead at the firm.” (p. 15) But the study doesn’t consider how too many laterals parachuting into the top of a firm can produce a concentration of power and a problematic distribution of partner compensation. When Bingham began to unravel, the spread between its highest and lowest paid partners was 12:1.

— Bingham’s final acquisition — McKee Nelson — was the largest law firm combination of 2009. The study doesn’t discuss the destructive impact of accompanying multi-year compensation guarantees that put some McKee Nelson partners at the very top of the Bingham McCutchen pay scale. To be fair, Nanda probably didn’t know about the guarantees, but the omission reveals the limitations of his investigation. The guarantees came to light publicly when the American Lawyer spoke recently with former partners who said that “the size and scope of the McKee Nelson guarantees led to internal fissures…that caused at least some partners to leave the firm.”

No Regrets

Looking to the future, Zimmerman told the Harvard researchers, “[W]e’re competing with the best every day. We know we are among the best.” (p. 19)

I wonder if he would now offer the same self-assessment of his leadership that Robert Ruyak provided to the American Lawyer at the time of Howrey’s bankruptcy, namely, “I don’t have any regrets.” Nanda’s case study on Howrey’s demise concludes with “Ruyak’s Reflections.” The “no regrets” line could lead to interesting classroom discussions about accepting responsibility, but it doesn’t appear in the Howrey study. Ruyak’s explanations for the firm’s failure do.

One explanation that receives no serious attention in the case study is Ruyak’s observation that the partnership lacked patience and loyalty to the firm: “The longer-term Howrey people realized that our profitability jumped around a bit,” he said. “The people who were laterals, maybe, did not.” (p. 15)

Perhaps the potential for institutional instability that can accompany aggressive inorganic law firm growth receives greater emphasis in classroom discussions of Howrey and Bingham than it does in Nanda’s written materials. In that respect, both firms are case studies in management failure that is regrettably pervasive: a wrongheaded vision of success and a reliance on misguided metrics by which to measure it.

BULLET DODGED? OR REDIRECTED TOWARD YOU?

For the past six months, Thomas Jefferson School of Law in San Diego seemed poised to become the first ABA-accredited law school to fail since the Great Recession began. For anyone paying attention to employment trends in the legal sector, the passage of six years without a law school closing somewhere is itself remarkable. It also says much about market dysfunction in legal education.

In his November 5 column in the New York TimesUniversity of California-Berkeley law professor Steven Davidoff Solomon has a different view. Solomon argues that recent enrollment declines prove that a functioning market has corrected itself: “[T]he bottom is almost here for law schools. This is how economics works: Markets tend to overshoot on the way up, and down.”

Solomon urges that the proper course is to keep marginal law schools such as Thomas Jefferson alive for a while “and see what happens.” I disagree.

Take Thomas Jefferson, Please

As I’ve discussed previously, in 2008 the school issued bonds for a new building. When the specter of default loomed large in early 2014, the question was whether some accommodation with bondholders would keep the school alive. Solomon suggests that creditors made the only deal possible and the school is the ultimate winner. He gives little attention to the real losers in this latest example of a legal education market that is not working: Thomas Jefferson’s students, the legal profession, and taxpayers.

In retrospect, the restructuring agreement between the school and its bondholders reveals that a deal was always likely. That’s because both sides could use other people’s money to make it, as they have since 2008.

According to published reports, interest on the taxable portion of the 2008 bond issuance was 11 percent. Tax-exempt bondholders earned more than 7 percent interest. Thanks to federally-backed student tuition loans, taxpayers then subsidized the school’s revenue streams that provided quarterly interest and principal payments to those bondholders.

Outcomes? Irrelevant In This Market

Last year, Thomas Jefferson accepted 80 percent of applicants. According to its latest required ABA disclosures, first-year attrition was over 30 percent. The school’s California bar passage rate for first-time takers in February and July 2012 was 54 percent, compared to the state average of 71 percent.

Solomon cites the school’s other dismal statistics, but ignores their implications. For example, Thomas Jefferson’s low bar passage rate made no difference to most of its graduates because the full-time long-term bar passage-employment rate for the class of 2013 was 29 percent, as it was for the class of 2012.

Meanwhile, its perennially high tuition (currently $44,900 a year) put Thomas Jefferson #1 on the U.S. News list of schools whose students incurred the greatest law school indebtedness: $180,665 for the class of 2013. According to National Jurist, the school generates 95 percent of its income from tuition.

It’s Alive

This invites an obvious question: How did the school survive so long and what is prolonging its life?

First, owing to unemployed recent graduates with massive student loans, bondholders received handsome quarterly payments for more than five years — much of it tax-exempt interest. The disconnect between student outcomes and the easy availability for federal loans blocked a true market response to a deteriorating situation. Bondholders should also give an appreciative nod to federal taxpayers who are guaranteeing those loans and will foot the bill for graduates entering income-based loan forgiveness programs.

Second, headlines touted Thomas Jefferson’s new deal as “slashing debt” by $87 million, but bondholders now own the law school building and will reportedly receive a market rate rent from the school — $5 million a year. Future student loans unrelated to student outcomes will provide those funds.

Third, the school issued $40 million in new bonds that will pay the current bondholders two percent interest. Student loan debt will make those payments possible.

Net-net, win-win, lose-lose

The bottom line benefit for Thomas Jefferson is immediate relief from its current cash crunch. Instead of $12 million in principal and interest payments annually, the school will pay $6 million in rent and bond interest — funded by students who borrow to obtain a Thomas Jefferson law degree of dubious value.

“I think the whole deal is a reflection of the fact that the bondholders were very desirous for us to succeed,” [Thomas Jefferson Dean Thomas] Guernsey said.

Actually, it reflects the bondholders’ ability to tap into the proceeds of future federal student loans as they cut a deal with a wounded adversary. Instead of cash flow corresponding to bond interest rates of 7 and 11 percent, bondholders will receive about half that amount, along with an office building and the tax advantages that come with ownership (e.g., depreciation deductions). Think of it as refinancing your home mortgage, except the bank gets to keep your house.

Erroneous Assumptions Produce Dubious Strategies

“This restructuring is a major step toward achieving our goals,” said Thomas Guernsey, dean of Thomas Jefferson. “It puts the school on a solid financial footing.”

Throwing furniture into the fireplace to keep the house warm is not a viable long-run survival strategy. Consider future students and their willingness to borrow as the “furniture” and you have a picture of the Thomas Jefferson School of Law’s business plan.

Meanwhile, Solomon echoes the hopes of law school faculty and administrators everywhere when he says, “[T]he decline in enrollment could lead to a shortage of lawyers five years from now.”

In assuming a unitary market demand for lawyers, he conflates the separate and distinct submarkets for law school graduates. His resulting leap of faith is that a rising tide — even if it arrives — will lift Thomas Jefferson’s boat and the debt-ridden graduates adrift in it. It won’t.

A MYTH THAT MOTIVATES MERGERS

In a recent interview with The American Lawyer, the chairman of Edwards Wildman, Alan Levin, explained the process that led his firm to combine with Locke Lord. It began with a commissioned study that separated potential merger partners into “tier 1” and “tier 2” firms. The goal was to get bigger.

“Size matters,” he said, “and to be successful today, you really have to be in that Am Law 50.”

When lawyers deal with clients and courts, they focus on evidence. Somehow, that tendency often disappears when they’re evaluating the strategic direction of their own institutions.

Bigger Is…?

There’s no empirical support for the proposition that economies of scale accompany the growth of a law firm. Back in 2003, Altman Weil concluded that 30 years of survey research proved it: “Larger firms almost always spend more per lawyer on staffing, occupancy, equipment, promotion, malpractice and other non-personnel insurance coverages, office supplies and other expenses than do smaller firms.” As firms get bigger, the Altman Weil report continued, maintaining the infrastructure to support continued growth becomes more expensive.

Since 2003, law firms have utilized even more costly ways to grow: multi-year compensation guarantees to overpaid lateral partners. Recently, Ed Newberry, chairman of Patton Boggs, told Forbes, “[L]ateral acquisitions, which many firms are aggressively pursuing now…is a very dangerous strategy because laterals are extremely expensive and have a very low success rate — by some studies lower than 50 percent across firms.”

The Magic of the Am Law 50?

Does success require a place in the Am Law 50? If size is the only measuring stick, then the tautology holds. Big = successful = big. But if something else counts, such as profitability or stability, then the answer is no.

The varied financial performance of firms within the Am Law 50 disproves the “bigger is always better” hypothesis. The profit margins of those firms range from a high of 62 percent (Gibson Dunn) to a low of 14 percent (Squire Sanders — which is in the process of merging with Patton Boggs).

Wachtell has the highest profit margin in the Am Law 100 (64 percent), and it’s not even in the Am Law 50. But that firm’s equity partners aren’t complaining about its 2013 average profits per partner: $4.7 million — good enough for first place on the PPP list. Among the 50 largest firms in gross revenues, 17 have profit margins placing them in the bottom half of the Am Law 100.

Buzzwords Without Meaning

A cottage industry of law firm management consultants has developed special language to reinforce a mindless “size matters” mentality. According to The Legal Intelligencer, Kent Zimmermann of the Zeughauser Group said recently that Morgan Lewis’s contemplated merger with Bingham McCutchen “may be part of a growing crop of law firms that feel they need to be ‘materially larger’ in order to increase brand awareness, [which is] viewed by many of these firms as what it takes to get on the short list for big matters.”

Not so fast. In the Am Law rankings, Morgan Lewis is already 12th in gross revenues and 24th in profit margin (44 percent). It doesn’t need to “increase brand awareness.” That concept might help sell toothpaste; it doesn’t describe the way corporate clients actually select their outside lawyers.

In a recent article, Casey Sullivan and David Ingram at Reuters suggest that Bingham’s twelve-year effort to increase “brand awareness” through an aggressive program of mergers contributed mightily to its current plight. The authors observe that In the early 1990s “[c]onsultants were warning leaders of mid-sized firms that their partnerships would have to merge or die, and [Bingham’s chairman] proved to be a pioneer of the strategy.”

Consultants have given big firms plenty of other bad advice, but that’s a topic for another day. Suffice it to say that Bingham’s subsequent mergers got it into the Am Law 50. However, that didn’t protect the firm from double-digit declines in 2013 revenue and profits, or from a plethora of partner departures in 2014.

In his Legal Intelligencer interview, Kent Zimmermann of Zeughauser also said that he has “seen firms with new leadership in place look to undertake a transformative endeavor like this [Morgan Lewis-Bingham] merger would be.” If Zimmermann’s overall observation about firms with new leadership is true, such leaders should be asking themselves: transform to what? Acting on empty buzzwords risks a “transformative endeavor” to institutional instability.

Soundbites

In contrast to Alan Levin’s “size matters” sound bite, here’s another. A year ago, IBM’s general counsel, Robert Weber, told the Wall Street Journal“I’m pretty skeptical about the value these big mergers give to clients…I don’t know why it’s better to use a bigger firm.”

Weber should know because he spent 30 years at Jones Day before joining IBM. But is anyone listening? IBM’s long-time outside counsel Cravath, Swaine & Moore probably is. Based on size and gross revenues, Cravath doesn’t qualify for the Am Law 50, but its clients and partners don’t care.

Uncertain Outcomes

Does becoming a legal behemoth add client value? Does it increase institutional nimbleness in a changing environment? Does it enhance morale, collegiality, and long-run firm stability? Do profit margins improve or worsen? Why are many big firm corporate clients — H-P, eBay, Abbott Labs, ConocoPhilllips, Time Warner, DuPont, and Procter & Gamble, among a long list — moving in the opposite direction, namely, toward disaggregation that increases flexibility?

Wearing their “size alone matters” blinders, some firm leaders aren’t even asking those questions. If they don’t, fellow partners should. After all, their skin is in this game, too.

STUDENT LOANS, MORAL HAZARD, AND A LAW SCHOOL MESS: PART 2

Sometimes law school moral hazard assumes a concrete form — literally.

A School Making Unwanted News

For example, Thomas Jefferson School of Law is now coping with a widely publicized credit downgrade of its bonds to junk status and related concerns about its future. But those financial difficulties date back to late 2008. The deepening recession was decimating the employment market for lawyers generally and hitting Thomas Jefferson graduates especially hard.

That didn’t stop the school from breaking ground in October 2008 on a new building that opened in January 2011. California tax-exempt bonds financed the $90 million project. Government-backed student borrowing for ever-increasing tuition — currently almost $45,000 a year — would provide a revenue stream from which to pay bondholders.

In 2012, new ABA-required disclosures allowed the world to see the school’s dismal employment record for graduates seeking full-time, long-term jobs requiring a JD (63 out of 236, or 27 percent, for the class of 2011). As enrollment declined, so did revenue from student loans. Unfortunately, the building and the bonds issued to pay for it remain, as does the stunning debt that students incurred for their degrees.

Quinnipiac’s New Digs

Recently, Quinnipiac University School of Law celebrated the opening of a new $50 million building in North Haven, Connecticut. Its website boasts that the new facility “is 154,749 square feet and will include a 180-seat two-tiered courtroom with Judge’s Chambers and Jury Room.” The Law Center is one of three interconnected buildings on a graduate school campus that is “expansive and architecturally distinctive, with an array of shared amenities, a beautiful full-service dining commons, bookstore, ample parking, and convenient highway access.”

Quinnipiac’s students — including all 92 entrants to the fall 2014 one-L class — will have luxurious accommodations in which to contemplate their uncertain futures. According to the school’s ABA required disclosures, nine months after graduation only 51 of 148 students in the class of 2013 — 34 percent — had found full-time long-term employment requiring a JD. And a Quinnipiac law degree has become increasingly expensive as tuition and fees alone have risen from $30,280 in 2006 to more than $47,000 today.

Tough Numbers

Such dismal employment outcomes for Quinnipiac are not new. Only 41 percent of its 2012 graduates found full-time long-term employment that required a JD. The rate for the class of 2011 was 35%.

Both Thomas Jefferson and Quinnipiac are among many law schools that must yearn for the good ole’ days — three years ago — when deans didn’t have to disclose whether their most recent graduates held jobs that were short-term, part-time, or had no connection whatsoever to the legal training they had received. ABA-sanctioned opacity allowed law schools as a group to claim — without qualification — that the overall employment rate for current graduating classes exceeded 90 percent.

Back to the Future

At Quinnipiac, the culture of that bygone era apparently endures. The link to its ABA-required disclosures page takes prospective students to “Employment Outcomes” and this:

“82% of the graduating class was employed as of Feb. 15, 2014 in the categories listed below…Bar passage is required, JD is an advantage, other professional jobs, and non-professional jobs.”

But if prospective students want to know the whole truth, they have to click again, go to the school’s ABA questionnaire, and perform a calculation from the raw data that reveals the 34 percent employment rate for the most important job category — full-time, long-term, JD-required jobs.

Law School Marketing

Similarly, the “Career Development” section of Quinnipiac’s current prospective student “Viewbook” leads with the banner headline that its “Employment Rate” for the class of 2012 was a remarkable 84% — “127 of 151 graduates employed.” An asterisk adds this tiny note: “Comprehensive employment outcomes for the class of 2012, including all employment categories as defined by the ABA (full-time/part-time/short term/long term) can be found at emplyomentsummary.abaquestionnare.org.”

Can prospective law students discover the truth? Sure. Should they take the time to do so? You bet. Do all of them make the effort? Not a chance. If they did, the 80+ percent, big-font employment statistics wouldn’t be in Quinnipiac’s recruiting materials. For careful readers, those big numbers are a waste of space.

What, me worry?

Undeterred by its recent graduates’ employment track record, Quinnipiac wants to grow. “There’s a decline in the demand for lawyers,” university president John Lahey said. “Even with the decline, we’re the only school in the country to spend $50 million for a new law school.”

That peculiar boast reflects an “if you build it, they will come” mentality determined to maximize tuition revenues. Unfortunately, that attitude can lead to short-term mischief and long-run calamity. Just ask anyone associated with the Thomas Jefferson School of Law.

Market dysfunction

Law schools remain unaccountable for the poor employment outcomes of their graduates. As most schools raise tuition, many students incur increasing amounts of debt for a degree that won’t get them a JD-required job. Because the federal government backs the vast majority of those loans, you could say that the system is your tax dollar at work.

Quinnipiac didn’t raise tuition for 2014-2015, but 86 percent of its 2013 graduates incurred law school debt averaging $102,000. Down the road at New Haven, 80 percent of Yale’s 2013 graduates with far superior job prospects incurred debt averaging $112,000.

The More Things Change…

The perverse law school response to market forces is a predictable business strategy, especially for law schools whose graduates are having the greatest difficulty finding law jobs. In an interview with the New Haven Register, Quinnipiac University President Lahey said that he hopes enrollment will grow from the current total of 292 students to 500 — the design capacity for the school’s new building.

Now that they’ve built it, will students come? If they value a “beautiful full-service dining commons,” perhaps. If they consider footnotes, read the fine print, and assess realistically their JD-required employment prospects as they peruse recruiting materials touting a Quinnipiac law degree, perhaps not.

DEWEY & LEBOEUF: CONNECTING MORE DOTS

[NOTE: August 8, 2014 at 5:00 pm EDT is the deadline for nominations to the ABA’s annual list of the “100 best websites by lawyers, for lawyers.” To nominate The Belly of the Beast, please click here.]

Two years ago, Dewey & LeBeouf filed for bankruptcy. Intriguing aspects of the firm’s unraveling are still emerging.

Recently, three of the firm’s former leaders, chairman Steven Davis, executive director Stephen DiCarmine, and chief financial officer Joel Sanders, filed an omnibus motion to dismiss the criminal charges against them. Such filings are not unusual. But their joint memorandum in support, along with DiCarmine’s separate supplemental brief, contain fascinating insights into the firm’s collapse. As the dots get added, it’s becoming easier to connect some of them.

Beyond the Scapegoats

Back in November 2012, former Dewey chairman Steven Davis hinted at the flaws in any narrative suggesting that he alone took the firm down. His filing in the Dewey bankruptcy proceeding promised another perspective:

“While ‘greed’ is a theme…, the litigation that eventually ensues will address the question of whose greed.” (Docket #654; emphasis in original)

The three co-defendants’ joint memorandum returns to that theme. It argues that the firm’s distress resulted from, among other things, “the voracious greed of some of the firm’s partners.” DiCarmine’s supplemental brief describes the greed of some former partners as “insatiable.”

The 2010 Bond Offering and 2012 Partner Contribution Plan

Some former Dewey partners might find the defendants’ recent filings uncomfortable. For example, much of the government’s case turns on the firm’s 2010 bond offering that brought in $150 million from outside investors. DiCarmine’s supplemental brief asks why, except for Davis, “the Executive Committee members who approved and authorized it have not been charged with any wrongdoing.”

Later, as the firm collapsed during the first five months of 2012, it drew down millions from bank credit lines while simultaneously distributing millions to Dewey partners. As I’ve reported previously, from January to May 2012, 25 Dewey partners received a combined $21 million.

The joint memorandum suggests that “if the grand jury presentation was fair and thorough, it demonstrates that drawdowns the firm made in 2012, prior to filing for bankruptcy, were made at the direction of several partners on the firm’s Operations Committee, and against the advice of Mr. Sanders, and despite the concerns of Mr. Davis and objections raised by Mr. DiCarmine.”

Shortly after those 2012 distributions occurred, Wall Street Journal reporters asked former Dewey partner Martin Bienenstock whether the firm used those bank credit lines to fund partner distributions. Bienenstock replied, “Look, money is fungible.”

He’s right. But that raises another question: Did some partners then use those eleventh-hour distributions of fungible dollars for their subsequent payments to the bankruptcy court-approved Partner Contribution Plan? The answer matters because the PCP capped each participating partner’s potential financial obligation to the Dewey estate. Unsecured creditors will recover an estimated 15 cents for every dollar the firm owed them.

There’s another twist. Dewey made its way through the bankruptcy proceeding without disclosing how partners shared those 2010 bond proceeds. In calculating each partner’s required contribution to the PCP, only partner distributions after January 1, 2011 counted. The PCP excluded consideration of any amounts that partners received in 2010.

Remember Zachary Warren?

The joint memorandum also counters the Manhattan District Attorney’s characterization of the accounting issues in the case as open and shut: “lf the grand jury had been properly instructed on these [accounting] standards, it would have concluded that the accounting methods were permissible,….”

Which takes us back to the curious case against Zachary Warren, a subject of several earlier posts. The charges against the former low-level Dewey staffer are predicated on an underlying violation of those accounting standards, too.

Warren has sought to sever his trial from that of his co-defendants, Davis, DiCarmine, and Sanders. Warren argues that plea agreements from witnesses who are cooperating with the government, notably Frank Canellas, demonstrate how thin the case against him is.

The Manhattan District Attorney responds that statements in the plea agreements are just the beginning: “[T]he purpose of the allocutions was to set forth facts implicating the witnesses in the crimes they committed; any part of them that inculpates the defendant is merely incidental.” (District Attorney’s letter to Hon. Robert Stolz, July 3, 2014) (App. I of Defendants Davis, DiCarmine, and Sanders Omnibus Memorandum in Support of Motion to Dismiss))

Really? Some career prosecutors might find it surprising to learn that when they get a defendant to “flip” and provide statements fingering a different target, the flipper’s statements are “merely incidental” insofar as they inculpate that target.

But the best line in the District Attorney’s surreply tries to connect Warren’s alleged December 2008 activities to Dewey’s collapse more than three years later: “[H]e was there to light the spark that fueled the scheme until its implosion in 2012.” (p. 6)

At least with respect to Zachary Warren, methinks the government doth protest too much. Meanwhile, his co-defendants are focusing on questions that cry out for answers.

 

 

THE ROBERTS COURT — PLAYING THE LONG GAME

It seems that everyone is trying to divine insights into how Chief Justice John Roberts is shaping the United States Supreme Court’s legacy. On July 2, The New York Times and The Wall Street Journal devoted front-page stories to that subject. On July 7, the Times published a review of Uncertain Justice, a book about the Roberts Court by pre-eminent constitutional scholar and Harvard Law Professor, Laurence Tribe, an unapologetic liberal.

While reading the review of Professor Tribe’s book, I recalled a January 2012 interview during which Stephen Colbert asked him about Roberts, who had taken his constitutional law course.

Tribe quipped, “I’m not sure how much of what I taught actually made a difference.”

All this is of special interest to me because Chief Justice Roberts was my law school classmate, and because I was in Professor Tribe’s course, too.

Activism v. Restraint

The Times story offers the Court’s unanimous rulings as a sign that the Chief Justice is sensitive to accusations that it has become an extension of the country’s paralyzing political polarization. The WSJ made a similar point in quoting from Roberts’ 2005 confirmation hearings on the subject of “judicial modesty”: “You don’t obviously compromise strongly held views, but you do have to be open to the considered views of your colleagues.”

Neither newspaper mentions other things that Roberts said during his confirmation hearings, including this: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Conservatives bemoaning “activist judges” loved that analogy. For trial judges ruling on the admissibility of evidence, it may be reasonable. For a Chief Justice of the United States Supreme Court, it bears little resemblance to reality, as Roberts’ own actions on the Court have proven.

Tactics v. Strategy

In assessing Chief Justice Roberts’ approach, it’s worth distinguishing strategy from tactics. He is playing a long game. Although already on the Court for nine years, he could serve for twenty more. Tactically, he can move slowly in his desired direction. Over time, his strategic vision becomes more evident.

Jeff Shesol, the Times reviewer of Professor Tribe’s book, suggests that some elements of that vision are already in place, including the elimination of meaningful campaign finance limits, reduced regulation of economic activity, and erosion of long-established protections in civil rights, consumer rights, and criminal procedure.

The Journal quotes Cornell Law Professor Michael Dorf’s example of the interplay between tactics and strategy. In 2009, the Chief Justice issued an opinion “that upheld the toughest parts of the Voting RIghts Act of 1965, while opening new exemptions from federal oversight…. Four years later, Chief Justice Roberts, joined by his fellow four conservatives, built on the groundwork he had laid in 2009 by sweeping aside Voting Rights Act oversight that had been in place since 1965. All four liberals dissented.” (Professor Dorf chides the liberal justices as “naive” in lending Roberts their votes periodically, but what’s their second choice?)

More to Come

The Roberts Court has laid other foundational elements that could have a dramatic impact on American society. For example, most liberals were relieved when Chief Justice Roberts provided the deciding fifth vote upholding the Affordable Care Act (“Obamacare”). He found common ground with the majority in the federal government’s taxing power.

But on a key issue, he joined the dissent, which resurrected a moribund position on another critical constitutional source of the federal government’s power. As Jeff Shesol observes in his review of Uncertain Justice, Roberts joined a dissent that “took the most constrictive view of federal power under the commerce clause in 75 years, since the New Deal-era court got out of the business of overseeing economic policy.” In other words, the stage is set for a five-man Supreme Court majority to reverse a longstanding jurisprudential justification for federal legislation.

Professor Tribe Was Wrong

Whether the Roberts Court produces positive or negative outcomes for the country depends, of course, on an individual’s political views. The incontrovertible point is that, notwithstanding Professor Tribe’s offhand comment to Stephen Colbert, Chief Justice Roberts learned quite a bit from the course that we took.

Here are a few of the lessons: characterizing an issue can be critical in determining its outcome; one person’s judicial activism is another’s judicial restraint; one person’s liberty can compromise another’s freedom; a tactical loss today can lead to a strategic victory tomorrow.

The Justices of the United States Supreme Court are not merely umpires. They set the rules by which everyone else plays. Chief Justice Roberts is playing a very long game.

A DEWEY “FOOT SOLDIER”?

Back in March, I wrote about Zachary Warren. In 2007, his first job out of college was client relations coordinator at Dewey & LeBoeuf. In July 2009, he left the firm to attend law school. Unfortunately, his brief tenure was sufficient, years later, for the Manhattan District Attorney to name him as one of four undifferentiated “Schemers” in a 106-count criminal indictment.

When he joined the firm, Warren was a generation younger than his fellow alleged “Schemers”: former chairman Steven Davis, former executive director Stephen DiCarmine, and former chief financial officer Joel Sanders. Understandably, Warren would prefer not to be tried with his co-defendants, so he has moved to sever his trial.

Timing is Everything

In its latest filing, the Manhattan District Attorney acknowledges that Warren “was not the mastermind of the Dewey fraud scheme.” However, the government’s objection to Warren’s motion adds, “[H]e certainly was a willing foot soldier.” We learn some other things from the filing, too.

For example, it turns out that Warren was the first “Schemer” to be indicted. In December 2013, the grand jury charged him alone with six counts of “Falsifying Business Records in the First Degree.” But Warren first learned of the charges two months later, when a broader indictment named him along with Davis, DiCarmine, and Sanders.

Presumably, the timing of Warren’s indictment related to the five-year statute of limitations governing the claims against him. The government relies heavily on a handful of December 2008 events to make the case.

December 2008

According to the District Attorney, on December 30, 2008, Warren had dinner with two of his superiors, Joel Sanders and then-Dewey finance director Frank Canellas. To satisfy its year-end bank loan covenants, Dewey needed another $50 million by the end of the following day. Allegedly, Sanders and Canellas had developed a contingency plan of potential financial adjustments that Warren helped to implement.

The District Attorney emphasizes Warren’s supposed sophistication regarding accounting issues. But that’s a far cry from proving his competence to challenge directives from superiors holding CPAs and MBAs. In fact, the propriety of whatever transpired on December 31, 2008 with respect to Dewey & LeBoeuf’s financial statements is likely to become the subject of battling expert accounting witnesses at trial. Dive into those weeds at your peril.

Motive?

As for the aftermath of the alleged New Year’s Eve scheme, the Manhattan District Attorney cites Warren’s “$115,000 in bonus compensation in 2009” as evidence of something sinister. The government claims that the amount exceeded bonuses paid to all but five other Dewey employees. At best, that argument is disingenuous.

Warren received his $75,000 bonus for 2008 in early 2009, as expected. When he left Dewey in July 2009, Sanders promised Warren a $40,000 bonus for his half-year of service, payable in the fall.

Three months later, Warren was at Georgetown Law and still waiting for his final bonus. He left messages for Sanders, who eventually wrote, “If you’re wondering about your bonus, I have you down to receive $40k right after our year end close.”

Warren replied, “I didn’t take out any student loans this semester because I was anticipating the bonus to be paid in the fall as we discussed before I left.” (For unknown reasons, the District Attorney’s brief italicizes for emphasis the last phrase — “as we discussed before I left.”) When Warren still hadn’t received the bonus In November, he tried again and, shortly thereafter, the firm sent him $20,000 — almost the entire net amount. He received the final installment of $1,400 in April 2010.

For the District Attorney, Warren’s requests of his former employer are proof of his ongoing involvement in the original scheme: “In September 2009, he began chasing down the additional bonus that defendant Sanders had promised him.”

Seriously?

 The Continuing Mystery

A fundamental question still begs for an answer: How does whatever happened in the presence of Zach Warren during December 2008 relate to the demise of a storied law firm in May 2012?

So far, it doesn’t. Unless the prosecution develops that connection, something will remain terribly wrong with this picture — and with the effort to put Zachary Warren in prison.

THE BATTLE FOR CHARLESTON

On the heels of my post about two struggling law schools, the New York Times published Professor Steven R. Davidoff’s discussion about one of them. Davidoff argues that critics of InfiLaw’s proposed acquisition of for-profit Charleston Law School are missing a key point: Why is it any worse for the private equity firm that owns InfiLaw to operate Charleston School of Law than, say, the current owners who have already taken millions of dollars out of the school?

In fact, he implies, if the school winds up affiliating with the state-run College of Charleston, why would that be preferable? Profit is profit; what difference does it make who gets it?

Here’s Davidoff’s money quote: “Lost among the dispute is the fact that a lower-tier law school like Charleston — whoever owns it — can not only produce capable graduates but help students start careers they couldn’t have without a law degree.”

Really?

As I’ve reported previously, even the dismal market for new attorneys hasn’t slowed the growth of InfliLaw’s three law schools (Arizona Summit, Charlotte, and Florida Coastal) — from a combined 679 graduates in 2011 to 1,191 in 2013. According to the ABA, only 36 percent of the InfiLaw classes of 2013 (including all three of its law schools) obtained full-time, long term JD-required employment.

Disaggregation doesn’t make things look any better for the company, unless you’re one of its private equity owners. For example, Davidoff cites Florida Coastal’s improvement in the percentage of graduates who pass the bar — from 58.2 percent to 76.4 percent as evidence of InfiLaw’s “track record of improving schools.” He’s responding to a “fear about the acquisition — that a private equity firm will lower standards.”

Davidoff doesn’t cite a source for his 76.4 percent number. According to Florida Coastal’s website, only 67.4 percent of first-time takers passed the bar in July 2013 — down from 75.2 percent for the July 2012 test. For February 2014, 72.9 percent of first-time takers passed — down from 79.3 percent in February 2013.

But that’s a minor issue compared to the overriding problem: only 35 percent of 2013 graduates obtained full-time, long-term jobs requiring that degree. The rest are not starting “careers that they wouldn’t have without a law degree.”

Debt

Maybe most InfiLaw graduates aren’t getting full-time, long-term law jobs, but they’re acquiring a lot of educational debt. Annual tuition and fees at all three InfiLaw schools exceed $40,000. At Arizona Summit, median federal law student debt between July 1, 2012 and June 30, 2013 was $184,825. At Florida Coastal, it was $162,549. The Charlotte Law School median was $155,697, plus another $20,018 in private loans.

Davidoff’s defense of InfiLaw ignores the combination of big debt and poor employment outcomes that afflict most of its recent graduates.

His concluding thoughts make a valid point: “Instead of arguing about who will profit from them, Charleston’s students may instead want to ask who will give South Carolina’s residents the best opportunity to succeed as lawyers at an acceptable price.”

Based on its track record to date, the answer isn’t InfiLaw. And I would reframe the question: Why should anyone profit at all when non-dischargeable student loans are the source of those profits?

The new ABA Task Force on the Financing of Legal Education has an unprecedented opportunity to straighten out this mess and take the profession to a better place. But with the chairman of InfiLaw’s National Policy Board (Dennis Archer) chairing that committee, don’t hold your breath waiting for that to happen.

 

THE ILLUSION OF LEISURE TIME

Back in January, newspaper headlines reported a dramatic development in investment banking. Bank of America Merrill Lynch and others announced a reprieve from 80-hour workweeks.

According to the New York TimesGoldman Sachs “instructed junior bankers to stay out of the office on Saturdays.” A Goldman task force recommended that analysts be able to take weekends off whenever possible. Likewise, JP Morgan Chase gave its analysts the option of taking one protected weekend — Saturday and Sunday — each month.

“It’s a generational shift,” a former analyst at Bank of America Merrill Lynch told the Times in January. “Does it really make sense for me to do something I really don’t love and don’t really care about, working 90 hours a week? It really doesn’t make sense. Banks are starting to realize that.”

The Fine Print

There was only one problem with the noble rhetoric that accompanied such trailblazing initiatives: At most of these places, individual employee workloads didn’t change. Recently, one analyst complained to the Times that taking advantage of the new JP Morgan Chase “protected weekend” policy requires an employee to schedule it four weeks in advance.

Likewise, a junior banker at Deutsche Bank commented on the net effect of taking Saturdays off: “If you have 80 hours of work to do in a week, you’re going to have 80 hours of work to do in a week, regardless of whether you’re working Saturdays or not. That work is going to be pushed to Sundays or Friday nights.”

How About Lawyers?

An online comment to the recent Times article observed:

“I work for a major NY law firm. I have worked every day since New Year’s Eve, and billed over 900 hours in 3 months. Setting aside one day a week as ‘sacred’ would be nice, but as these bankers point out, the workload just shifts to other days. The attrition and burnout rate is insane but as long as law school and MBAs cost $100K+, there will be people to fill these roles.”

As the legal profession morphed from a profession to a business, managing partners in many big law firms have become investment banker wannabes. In light of the financial sector’s contribution to the country’s most recent economic collapse, one might reasonably ask why that is still true. The answer is money.

To that end, law firms adopted investment banking-type metrics to maximize partner profits. For example, leverage is the numerical ratio of the firm’s non-owners (consisting of associates, counsel, and income partners) to its owners (equity partners). Goldman Sachs has always had relatively few partners and a stunning leverage ratio.

As most big law firms have played follow-the-investment-banking-leader, overall leverage for the Am Law 50 has doubled since 1985 — from 1.76 to 3.52. In other words, it’s twice as difficult to become an equity partner as it was for those who now run such places. Are their children that much less qualified than they were?

Billables

Likewise, law firms use another business-type metric — billable hours — as a measure of productivity. But billables aren’t an output; they’re an input to achieve client results. Adding time to complete a project without regard to its impact on the outcome is anathema to any consideration of true productivity. A firm’s billable hours might reveal something about utilization, but that’s about it.

Imposing mandatory minimum billables as a prerequisite for an associate’s bonus does accomplishes this feat: Early in his or her career, every young attorney begins to live with the enduring ethical conflict that Scott Turow wrote about seven years ago in “The Billable Hour Must Die.” Specifically, the billable hour fee system pits an attorney’s financial self-interest against the client’s.

The Unmeasured Costs

Using billables as a distorted gauge of productivity also eats away at lawyers’ lives. Economists analyzing the enormous gains in worker productivity since the 1990s cite technology as a key contributor. But they ignore an insidious aspect of that surge: Technology has facilitated a massive conversion of leisure time to working hours — after dinner, after the kids are in bed, weekends, and while on what some people still call a vacation, but isn’t.

Here’s one way to test that hypothesis: The next time you’re away from the office, see how long you can go without checking your smartphone. Now imagine a time when that technological marvel didn’t exist. Welcome to 1998.

When you return to 2014, read messages, and return missed calls, be sure to bill the time.

WHO REALLY PAYS FOR LAW STUDENT DEBT?

More public interest lawyers for our nation’s underserved citizens would be a good thing. More public debt to subsidize law schools that shouldn’t exist at all would be a bad thing.

In recent years, law schools have promoted debt forgiveness programs as a solution to rising student loan obligations. In some important ways, they are. Income-based repayment (IBR) can be a lifeline in a drowning pool of educational debt. It can also open up less remunerative options, including public interest law, for those willing to forego big bucks to avoid big law firms. But now everyone seems surprised to realize that, when all that debt is forgiven years hence, someone will have to pick up the tab.

Well, not quite everyone is surprised. More than two years ago, Professor WIlliam Henderson, one of the profession’s leading observers, saw this train wreck coming. “Unless the government’s actuarial assumptions on student loan repayments turn out to be correct,” Henderson wrote, “federal funding of higher education is on a collision course with the federal deficit.”

Tuition increases without regard to value added

Recently, the Wall Street Journal made that collision a front page story. In “Plans That Forgive Student Debt Skyrocket,” law students took center stage — and for good reason. For a decade, new lawyers have outpaced everyone, even medical students, in the rate at which they have accumulated educational debt.

Am Law columnist Matt Leichter has reported that from 1998 to 2008, private law school tuition grew at an annual rate of almost 3.5 percent, compared to 1.89 percent for medical schools and 2.85 percent for undergraduate colleges. Public law school tuition increased at an even faster pace: 6.71 percent. From 2008 to 2012, median law school debt for new graduates increased by 54 percent — from $83,000 to $128,000. (That compares to a 22 percent increase in medical student debt.)

Market disconnects

What accounts for the law school tuition explosion? For starters, the U.S. News rankings methodology incentivizes deans and administrators to spend money without regard to the beneficial impact on a student’s education. More expenditures per student mean a higher ranking, period.

Who provides that money? Students — most of whom obtain federally backed loans. To that end, the prevailing law school business model requires filling classrooms. As transparency about dismal law graduate employment outcomes has produced fewer applications at most schools, deans generally have responded by increasing acceptance rates. The overall rate for all law schools rose from 56 percent in 2004 to almost 80 percent in 2013.

Sell, sell, sell

As National Law Journal reporter Karen Sloan observed recently, “It’s a tale of two legal education worlds.” Top law schools place 90 percent of their graduates; but “more than three-quarters of ABA accredited law schools — 163 — had underemployment rates of 20 percent or more.”

Those numbers begin to explain what has now become an annual springtime ritual. As I’ve discussed in recent posts, many law school professors and deans at schools producing those underemployed graduates are proclaiming that the lawyer glut is over. Now, they say, is the best time ever to attend law school.

Outside the ivory tower, practicing lawyers know that such hopeful rhetoric isn’t transforming the market or slowing the profession’s structural changes. Last June, NALP Executive Director James Leipold wrote, “There are no indications that the employment situation will return to anything like it was before the recession.”

The most recent ABA employment statistics for the class of 2013 prove Leipold’s point: Nine months after graduation, only 57 percent had obtained long-term-full-time jobs requiring a JD. Median incomes for new graduates aren’t improving much, either. For the class of 2008, it was $72,000; for the class of 2012, it was $61,245.

IBR to the rescue

The vast majority of students borrow six-figure sums to fund their legal education. The federal government backs the loans, which survive bankruptcy. The end result is law schools with no financial skin in a game for which they reap tremendous economic rewards.

IBR is a godsend to many new lawyers who can’t get jobs that pay enough to cover their loans. It permits monthly installments totaling 10 percent of discretionary income (defined as annual income above 150 percent of the poverty level). Outstanding balances are forgiven after 10 years; for private sector workers, it’s 20 years.

Less obvious consequences

IBR has a dark side, too. If a person leaves the program early, total debt will include all accrued interest and principal, often creating a balance larger than the original loans. For those remaining in the program for the requisite 10 or 20 years, forgiven debt becomes taxable income in the year forgiven.

More insidiously for the profession, IBR allows marginal schools to exploit an already dysfunctional market. Such schools are free to ignore the realistic job prospects for their graduates (including JD-required public service positions) as they recruit new students who obtain six-figure loans to pay tuition. When graduates can’t get decent jobs, it’s not the school’s problem. Meanwhile, IBR becomes the underemployed young lawyer’s escape hatch.

The Wall Street Journal reports that graduates are using that hatch in dramatically increasing numbers: “[E]nrollment in the [IBR] plans has surged nearly 40% in just six months, to include at least 1.3 million Americans owing around $72 billion.” Those figures aren’t limited to lawyers, but they undoubtedly include many young graduates from law schools that should have closed long ago.

Bill Henderson probably finds some measure of vindication as a wider audience now frets over a problem that he foresaw years ago. But I know him well enough to believe that for him, like me, four of the least satisfying words in the English language are: “I told you so.”

DEWEY – PROSECUTING THE VICTIMS

[NOTE: On Friday, April 11 at 9:00 am (PDT), I’ll be delivering the plenary address at the Annual NALP Education Conference in Seattle.

On Wednesday, April 16 at 5:00 pm (CDT), I’ll be discussing The Lawyer Bubble — A Profession in Crisis as part of the Chicago Bar Association Young Lawyers Section year-long focus on “The Future of the Legal Profession.”]

The trip from victim to perpetrator can be surprisingly short. Just ask some former Dewey & LeBoeuf employees who pled guilty for their roles in what the Manhattan District Attorney calls a massive financial fraud. Anyone as puzzled as I was by 29-year-old Zachary Warren’s perp walk last month will find recently unsealed guilty plea agreements in the case positively mind-boggling. In some ways, those agreements are also deeply disturbing, but not for the reasons you might think.

Warren, you may recall, was a 24-year-old former Dewey staffer when he allegedly had the misfortune of attending a New Year’s Eve day meeting in 2008 with two of his superiors. According to the grand jury indictment, they were among the “schemers” who developed a “Master Plan” of accounting fraud that persisted for years.

When Warren left Dewey in 2009 to attend law school, the firm was making hundreds of millions of dollars in profits, many individual partners enjoyed seven-figure paychecks, and no one foresaw the firm’s total collapse three years later. Nevertheless, last month Warren was indicted with three others who had held positions of responsibility right up to the firm’s ignominious end: former chairman Steven H. Davis, former executive director Stephen DiCarmine, and former chief financial officer Joel Sanders.

A fateful New Year’s Eve meeting

The indictment alleges that CFO Sanders was one of two people with Warren at their December 31 meeting. Now we’ve learned the identity of the other: Frank Canellas.

Canellas’ ascent in the firm had been meteoric. While finishing his bachelor’s degree at Pace University, he joined LeBoeuf, Lamb, Greene & MacRae in 2000 as a part-time accounting intern. Only seven years later, he became — at the tender age of 28 — director of finance for the newly formed Dewey & LeBoeuf. Thereafter, his compensation increased dramatically, rising to more than $600,000 annually by 2011.

In February 2014, Canellas copped a plea. He agreed to cooperate with prosecutors and plead guilty to a felony charge of grand larceny for his role in allegedly cooking Dewey’s books. In exchange, the DA will recommend a light sentence – only two-to-six years of jail time compared to the 15-year maximum penalty for the offense.

Using the boss to get underlings?

Presumably, one reason that the Manhattan DA squeezed Canellas was to help prove culpability at higher levels of the defunct firm, particularly CFO Sanders. But there is something more troubling here than the use of that standard prosecutorial tactic to get at the higher-ups. In his plea agreement statement, Canellas also implicates downstream employees who, he says, implemented the accounting adjustments that he and his bosses developed.

Ironically, in 2012, the people whom Canellas now fingers were among the hundreds of non-lawyers who suffered the most in the wake of Dewey & LeBoeuf’s spectacular implosion. When that was happening, observers properly regarded the firm’s low-level staffers generally as helpless victims. Now, for some of them, guilty pleas in exchange for recommendations of leniency give new meaning to the phrase “adding insult to injury.”

What’s the point?

Why go after the underlings at all? Does it really take a criminal prosecution coupled with the promise of a plea deal to assure the truthful testimony of pawns in a much larger game? With Canellas on the hook, wouldn’t a trial subpoena do the trick for those working under him?

The policy ramifications are even more profound. What message does the Manhattan DA send by flipping a cooperating superior to nail underlings for doing what the superior asked them to do? What does this approach mean for employees far down the food chain in a big law firm or any other organization? Even if you don’t have an accounting degree, should you now second-guess the bookkeeping directives that you receive from people who do? Then what? Complain to your local district attorney that you have concerns about your instructions? And why draw the line at accounting issues?

For any employee now worried about becoming the target of a subsequent criminal proceeding, other options make even less practical sense. As the economy crashed in 2008 and 2009, was it the low-level staffer’s duty to refuse a directive relating to the firm’s accounting procedures or any other issue that caused the staffer concern? To quit or get fired from a decent job and enter a collapsing labor market? To apply for work elsewhere, only to have a prospective new employer solicit a prior job reference and learn that the would-be hire is not a “team player”?

Losing sight of the mission

Unlike many senior partners at Dewey & LeBoeuf, the six relatively low-level staffers who did as Canellas directed (and have now pled guilty to resulting crimes) did not walk away with millions of dollars. Other than the jobs they held until the firm disintegrated, none benefitted financially from the alleged financial fraud.

The situation brings to mind a November 2012 court filing on behalf of Dewey’s former chairman, Steven H. Davis. Responding to the motion of the Dewey & LeBoeuf Official Committee of Unsecured Creditors for permission to sue Davis personally, Davis’s brief concluded: “While ‘greed’ is a theme of the Committee’s Motion, the litigation that eventually ensues will address the question of whose greed.” (Docket #654; emphasis in original)

The Manhattan DA’s investigative efforts could center on that question, too. So far, as indictments and plea deals get unsealed, the situation looks more like an unrestrained effort to secure notches on a conviction belt.

Perhaps it’s just too early to tell where the prosecution is headed. Then again, maybe vulnerable scapegoats make easier targets than the wealthy, high-powered lawyers who created and benefitted from the culture in which those scapegoats did their jobs.

A DEWEY GUILTY PLEA COULD BECOME MORE THAN ANYONE BARGAINED FOR

Sometimes there’s more to a news story than meets the eye. For example, recent indictments and guilty pleas involving former Dewey & LeBoeuf personnel focus on a handful of individuals who allegedly cooked the firm’s books for years prior to its implosion. The sordid details make for entertaining press conferences and great headlines.

But maybe a more interesting question is: who will be standing naked when the Manhattan DA finishes pulling the threads on that sweater? A careful look at Frank Canellas’ plea agreement suggests some surprising possibilities. But it takes a brief history of the Dewey bankruptcy proceeding to understand some of them. So bear with me.

Remember the PCP?

Back in October 2012, the Dewey & LeBoeuf bankruptcy judge approved a novel Partnership Contribution Plan. For a collective $71.5 million, participating former Dewey partners received releases of creditor claims totaling more than $500 million. That meant creditors could not seek to “clawback” additional amounts that partners received while the firm was insolvent.

When did the firm become insolvent? The PCP answered that question with a specific date, January 1, 2011. A progressive payment table determined each partner’s required contribution based on the amount the partner received from Dewey after that date. Partners who had received $400,000 or less paid back 10 percent of the total. From there, the percentage rose so that partners who had received $3 million or more paid 30 percent. (Former Chairman Steven Davis was not allowed to participate in the plan.)

Remember the 2010 bond offering?

The January 1, 2011 cutoff date was important because Dewey & LeBoeuf’s unusual $150 million bond offering closed in 2010. Under the PCP, any money that participating partners received that year — including proceeds from bond investors and funds from banks that refinanced the firm’s debt — remained off the potential clawback table.

A group of retired Dewey partners objected to the PCP, claiming that its terms favored former firm leaders.  Attorneys for the Dewey bankruptcy estate responded that they had retained an outside professional, Jonathan Mitchell of Zolfo Cooper, who had “controlled the development and promulgation of the PCP.” (Docket #482 at 10) Mitchell worked on the project with David Pauker of Goldin Associates.

Remember the court’s approval of the PCP?

Dewey’s bankruptcy judge overruled objections to the PCP and determined that the January 1, 2011 cutoff date was reasonable. In doing so, he relied in part on Mitchell and Pauker, who testified to the difficulty of efforts aimed at proving that the firm was insolvent earlier:

“Based on investigations of the Debtor’s finances by the Debtor’s professionals, Pauker and Mitchell testified that there was strong evidence to support the assertion that the Debtor was insolvent in 2012, but insolvency would be more difficult to prove for 2011, and even harder for 2010. Determining the exact insolvency date is both difficult and expensive because several complex tests are used, leading to extended expensive litigation as those tests can produce contradictory results.” (10/09/12 Mem. Op. at 23; transcript record citations omitted)

Of particular interest in light of Canellas’ recent guilty plea regarding his role in creating the firm’s financial statements, the court went on to observe: “Further complicating the issue, the firm had a clean audit opinion issued in 2010 and was able to refinance a significant portion of its debt,….” (Id.)

Now things get interesting

Flash forward to March 2014, when the Manhattan DA unseals Canellas’ plea agreement. In his accompanying statement, the former Dewey director of finance says that, far from clean, audit opinions for 2008, 2009, and 2010 were based on financial statements that he knew to be false.

Meanwhile, the Dewey bankruptcy attorneys who persuaded the court to approve the PCP gave way to a liquidating trustee. That trustee is asserting clawback claims against individual partners who refused to participate in the PCP. Those complaints allege that the firm was insolvent no later than January 1, 2009 and seek recovery based on that much earlier date.

Now what?

Here’s another way to look what has happened so far:

1. Lawyers for the Dewey bankruptcy estate presented the court with a plan whereby former Dewey partners returned a percentage of the amounts that they received after January 1, 2011 — but anything they received prior to that date became off limits to Dewey’s creditors. (The court-approved final confirmation plan estimated that general unsecured creditors with claims collectively approaching $300 million would eventually receive between 4 cents and 15 cents for every dollar that the firm owed them.)

2.  A group of objectors claimed that the PCP favored Dewey’s most wealthy and powerful former partners.

3. The court overruled that objection and approved the PCP with its January 1, 2011 cutoff date because, among other reasons, professional advisers to the Dewey estate testified that it was reasonable and the firm got what the court called a “clean” audit for 2010.

4. The Manhattan DA has now indicted four former Dewey employees — and obtained guilty pleas from seven others — for their roles in allegedly cooking the books in ways that, if true, would render the 2010 audit not so clean.

5.  One more thing. According to Canellas’ statement appended to his February 13, 2014 plea agreement, after Dewey filed its bankruptcy petition on May 28, 2012, he continued working for the firm’s wind down committee and, at the time he signed the statement, was still working for Dewey’s liquidating trustee. (The plea agreement required him to resign from that position.)

As you try to wrap your head around all of this, remember that “foolish consistency is the hobgoblin of little minds.” So think big and follow the money, if you can find it.

In my next post, I’ll discuss another aspect of the Canellas plea agreement that is likewise deeper than the current headlines — and far more troubling.

DEWEY & LE BOEUF: MORE COLLATERAL DAMAGE

Does 29-year-old Zachary Warren hold the key to understanding the demise of the storied white-shoe law firm, Dewey & LeBoeuf’? Apparently, New York County District Attorney Cyrus R. Vance, Jr. thinks so.

Zachary Who?

In 2006, Warren graduated from Stanford University with a degree in international relations. In 2008, he went to work for Dewey & LeBoeuf as a client relations manager; it was his first job out of college. His work at Dewey, Am Law Daily’s Sara Randazzo reports, was “to pester partners to make sure clients paid their bills, according to two former Dewey employees.” That, by the way, is an annual ritual at every big firm, and it’s no fun.

When Warren started at Dewey, he was 24 years old. After spending his “gap year” there, he attended Georgetown Law where he served on the law review. After graduation, he took a federal district court clerkship in Maryland. Then he accepted another clerkship that he still has for Judge Julia Smith Gibbons on the Sixth Circuit Court of Appeals.

Having left Dewey three years before its demise, Warren must have found it odd when Vance’s office called to discuss the firm’s failure. Most people who once worked at the firm would have been surprised, too. They’d never heard of Zachary Warren until last week, when he was indicted, along with three more familiar Dewey names — Steven Davis, Stephen DiCarmine, and Joel Sanders, respectively, the firm’s last chairman, executive director, and chief financial officer.

An Observer’s Perilous Plight

What did Warren do to merit inclusion with such a powerful and notorious threesome, thereby creating a foursome that the indictment identifies collectively as the “Schemers”? Based on the allegations of the 106-count indictment, not much.

On or about December 30, 2008 — the end of the first full calendar year of operation following the blockbuster merger of Dewey Ballantine and LeBoeuf Lamb — Warren’s boss, CFO Joel Sanders, allegedly told him that he would receive his full bonus “if the Firm satisfied its bank covenants.” The indictment doesn’t say whether Warren knew what that phrase meant.

The following day, the indictment alleges, Warren sat in a meeting with Sanders and an unnamed “Employee C” while Sanders and Employee C discussed “financial adjustments.” That evening — New Year’s Eve at 7:24 pm, to be precise — Employee C wrote to Warren: “Great job, dude. We kicked ass! Time to get paid.”

Twelve minutes later, Warren responded, “Hey man, I don’t know where you come up with some of this stuff, but you saved the day. It’s been a rough year but it’s been damn good. Nice work dude. Let’s get paid!”

Finally, two months after that, on February 24, 2009, Warren supposedly responded falsely to a message from a Dewey employee about an allegedly inappropriate financial adjustment in 2008.

Only one of the 106 counts against the “Schemers” includes Warren. It is #106 and is a bit confusing: “CONSPIRACY IN THE FIFTH DEGREE… as follows: The defendants…during the period from on or about November 3, 2008, to on or about March 7, 2012, with intent that conduct constituting the crime of SCHEME TO DEFRAUD IN THE FIRST DEGREE be performed, such crime being a felony, agreed with one and more persons to engage in and cause the performance of such conduct.” I’m not sure where to put the “[sic].”

Warren has another distinction: He is also the subject of his own, separate indictment, alleging six counts of falsifying business records.

The Awesome Power of Government

To understand what is happening to Zachary Warren — a millennial whose first dream job has turned into a nightmare — look no farther than prosectuor Vance’s press conference. He announced that seven former employees who worked in Dewey & LeBoeuf’s accounting department have already pled guilty “for their individual roles in the scheme.”

That’s how these things work. Government investigators start at the bottom of an organization, identify low-level employees who might know something, apply pressure, and acquire guilty pleas that create cooperating witnesses who can testify against the real targets. Indicting a low-level person can also have an in terrorem effect, demonstrating to others the government’s seriousness.

I’ve never met or communicated with Zachary Warren. But as with any attorney, a plea deal poses special problems that don’t affect non-lawyers. Reportedly, Warren passed the bar last July. Among other things, a guilty plea could end forever his ability to practice law. That would be a tough way to close out an investment of five years (law school plus two clerkships) and $150,000 in tuition.

Abandoning Common Sense

Warren’s co-defendants may have something to say about whether any crime occurred at all. The presumption of innocence has not yet lost all meaning. Still, some aspects of the case against Zachary Warren, seem particularly peculiar.

“Pestering partners at year-end to get clients to pay outstanding bills” is not exactly a policy-making position. How can anyone who worked in the bureaucratic bowels of a big firm for less than a year bear responsibility for what went wrong three years later? Should low-ranking administrative staff members everywhere start asking questions about what superiors want them to do and why? How should they assess the answers? When should they resign in protest?

Likewise, when Warren left Dewey in 2009, the partnership collectively was making hundreds of millions of dollars in profits. At the time, no one in the profession could have foreseen the firm’s disastrous demise in 2012. And before making too much of the juicy emails allegedly attributed to Zachary Warren, please pause, add a little context, and consider how all of us sometimes fire off quick, mindless responses to emails and text messages.

Most importantly, think about how you’d feel if someone you knew found himself in Zachary Warren’s position. Twenty-four years old and only months into his first job after college, he participated in an end-of-the-year revenue collection meeting with superiors. More than five years later, that meeting led to a “perp walk” with three codefendants, any of whom could have made or broken his career at Dewey & LeBoeuf.

Then think about the government’s awesome power to turn lives upside down in a pursuit that Warren’s lawyer called a “travesty.” You might conclude that he has a point. Anyone truly interested in what went wrong at Dewey & LeBoeuf should take a look at Chapter 8 of The Lawyer Bubble – A Profession in CrisisThen you’ll really wonder why Zachary Warren is part of this mess.

THE END OF THE LAWYER GLUT?

Could a years-long oversupply of new attorneys finally be on the wane? Based on the trend of recent headlines, it would be easy to reach that conclusion. For example, a December 2013 Wall Street Journal headline read: “First-Year Law School Enrollment at 1977 Levels.” The first sentence of the article described the “plunge” in entering law student enrollments.

Likewise, in January 2014, National Jurist reported on steep enrollment declines at particular schools from 2010 to 2013. The big losers in that compilation were “the University of LaVerne (down 66.2 percent) and Thomas M. Cooley Law School (down 40.6 percent).”

Most recently, the National Law Journal took a closer look at the 13 law schools that saw “1L enrollment drop by 30 percent or more in the span of 12 months, while an additional 27 reported declines of 20 to 30 percent in all.”

Taken together, these reports create an impression that the severe lawyer glut is ending.

How about a job?

For prospective law students, the size of any drop in overall enrollment isn’t relevant; employment prospects upon graduation from a particular school are. According to the ABA, just under 40,000 students began law school in the fall of 2013 — down eight percent from the entering class of 2012. That’s significant, but not all that dramatic.

Meanwhile, for the entire decade ending in 2022, the latest estimate (December 2013) from the Bureau of Labor Statistics puts the total number available positions for “Lawyers, judges, and related workers” at around 200,000. That net number takes into account deaths, retirements, and other departures from the profession. More sobering, it’s yet another downward revision from earlier BLS projections.

As the profession makes room for 20,000 new attorneys a year, why all the media attention about 1L enrollments “plunging” to a level that is still almost twice that number?

I think the answer is that some law professors are running around screaming that their hair is on fire because, for many of them, it is. The media are covering that blaze, but the larger conflagration surrounding the crisis in legal education somehow gets lost.

U.S. News to the rescue?

Professor Jerry Organ at the University of St. Thomas School of Law has an interesting analysis of the situation. Schools in trouble are “picking their poison.” One option is to maintain admission standards that preserve LSAT and GPA profiles of their entering classes. Alternatively, they can sacrifice those standards in an effort to fill their classrooms and maximization tuition revenues.

U.S. News & World Report rankings now have an ironic role in this mess. For decades, rankings have contributed to perverse behavioral incentives that have not served law schools, students, or the profession. For example, in search of students with higher LSATs that would improve a ranking, many schools diverted need-based financial aid to so-called “merit scholarships” for those with better test scores.

Likewise, revenue generation also became important in the U.S. News calculus. As the ABA Task Force Report on the Future of Legal Education notes, the ranking formulas don’t measure “programmatic quality or value” and, to that extent, “may provide misleading information to students and consumers.” They also reward “increasing a school’s expenditures for the purpose of affecting ranking, without reference to impact on value delivered or educational outcomes.”

Now the rankings methodology has presented many schools with a Hobson’s choice: If they preserve LSAT/GPA profiles of their entering classes, they will suffer a reduction in current tuition dollars as class size shrinks; if they admit less qualified applicants, they’ll preserve tuition revenues for a while, but they’ll suffer a rankings decline that will hasten their downward slide by deterring applicants for the subsequent year.

As some schools become increasingly desperate, they will be tempted to recruit those who are most vulnerable to cynical rhetoric about illusory prospects on graduation. The incentive for such mischief is obvious: However unqualified such students might be for the profession, the six-figure loans they need to finance a legal education are available with the stroke of a pen. Revenue problem solved.

Some law professors argue that the trend of recent declines in enrollment is sufficient to create a shortfall in law school graduates by 2015. Maybe they’re right. Time will tell — and not much time at that.

I think it’s more likely that over the next decade, a lot of law professors will find themselves looking for work outside academia. Meanwhile, their best hope could be to run out the student loan program clock long enough for them to retire. Then it all becomes someone else’s problem.

TROUBLE IN ALBANY

Recently, Albany Law School has attracted some unwanted publicity, but many other schools should be paying close attention. On February 3, the school offered buyouts to as many as eight tenured professors. That may not sound like a lot, but it’s almost 20 percent of the school’s full-time faculty.

Reversal of Fortune

Notwithstanding its relatively low position in the law school universe (U.S. News rank: #132), Albany Law School enjoyed a nice run from 2005 to 2011 — as did most of its peers. During that period, the school enrolled around 240 first-year students annually. Tuition rose steadily from $30,000 in 2005 to its current $42,000. During the period, student-faculty ratios dropped from 16:1 to 13:1.

But the last few years have been a different story. Even as it accepts almost 70 percent of all applicants, enrollment for the class of 2016 has plummeted to 182 — a 25 percent drop from 2005. The school placed a little more than half of its 2012 graduates in full-time long-term jobs requiring a JD. (As with many schools, the decline in first-year enrollment accelerated after detailed ABA-mandated employment outcomes first appeared in 2012 for the class of 2011.)

Tough Choices

Albany’s new dean, Penelope Andrews, began her tenure on July 1, 2012. Even a thorough understanding of the school’s problematic trend lines could not have prepared her for the challenges she soon confronted.

On December 16, 2013, Daniel Nolan, chair of the Albany board of trustees, circulated an email stating that “relevant financial circumstances facing the School require a headcount reduction, including faculty.”

A week later, at the request of a newly formed (in November 2013) Albany Law School chapter of the American Association of University Professors, Gregory F. Schultz, associate secretary and director of the national AAUP, wrote a lengthy letter to Dean Andrews. Schultz expressed concern that the law school’s claims about economic circumstances didn’t rise to the level of “financial exigency” required to justify terminating tenured faculty. Instead, he wrote, Albany’s threatened action appeared to be a pretext for steps that “would eviscerate tenure at the Albany Law School and, with it, the protections for academic freedom.”

He said, She said

According to JDJournal, “one of the professors at the school said that there is a ‘small but vocal minority’ of faculty at the school who want standards lowered in an effort to increase enrollment. This would then prevent layoffs…. It’s a very selfish, selfish endeavor. They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”

The New York Law Journal reported that “several angry Albany Law School professors deny the faculty ever suggested the school should lower standards to boost enrollment and avert layoffs.” On February 3, 2014, the board of trustees reportedly quashed the idea anyway:

“A review of our declining bar passage statistics (we are now the second lowest law school in New York State for bar passage), combined with the extremely difficult employment market for our graduates, compels us to believe that we must focus on quality of applicants, not quantity. To admit students in order to increase revenues due to projected operating deficits would be both unethical and in violation of ABA standards.”

A Way Out?

Presumably, offering voluntary buyouts to tenured professors could solve the problem for now. If a sufficient number of faculty members accept, layoffs won’t happen. That would defer for another day the fight over whether the school truly faces “financial exigency” justifying involuntary terminations of tenured faculty.

Others can debate whether Albany is operating at a loss and/or should draw down it’s endowment to cover shortfalls. More interesting questions relate to any law school’s possible responses to the larger phenomenon of declining applicant pools.

Some Albany Law School professors reacted with indignant outrage at the suggestion that a colleague might have urged the school to counter declining applications with lower admission standards. But the fact is that many schools have responded in exactly that way. Overall acceptance rates have risen from 50 percent in 2003 to 75 percent in 2012. It’s a cynical strategy, but it keeps seats filled with tuition-paying student dollars from federally-backed loans.

Other schools are cutting costs and economizing where possible. Those efforts are laudable, but they are short-term fixes. Any long run solution requires the involvement of tenured faculty who now have a choice: be part of the solution or become a growing part of the problem. Tenure is an important and valuable aspect of higher education. But it won’t be worth much to those whose institutions disappear.

In the end, the question is whose interests matter most. Dean Andrews deserves praise for confirming what sometimes gets lost in the noise as various stakeholders scramble to preserve their positions in the legal academy:

“Cutbacks are very, very hard. But what is motivating everything about what I’m doing is my student-centric approach,” Dean Andrews said. “Albany Law School and law schools exist to train students and it’s all about the students.”

Indeed it is.

A STORIED LATERAL HIRE

“Are Laterals Killing Your Firm?” is the provocative title of The American Lawyer‘s February issue. The centerpiece is a thoughtful article, “Of Partners and Peacocks,” by Bill Henderson, professor at Indiana University Maurer School of Law and Director of the Center on the Global Legal Profession, and Christopher Zorn, professor of political science, sociology, crime, law, and justice at Penn State University.

Henderson and Zorn conclude that “for most law firms there is no statistically significant relationship between more lateral partner hiring and higher profits.” As I observed in last week’s post, most big law managing partners have conceded as much in anonymous surveys. Even so, the drumbeat of lateral hiring to achieve top line revenue growth persists, even in the face of dubious bottom line results.

A timely topic

One lateral hire outcome became particularly fascinating this week. On the way out of the top spot at DLA Piper is global co-chair Tony Angel. You might remember him from one of my earlier articles, “The Ultimate Lateral Hire.”

The American Lawyer 2012 Lateral Report identified Angel as one of the top lateral hires of the year — “a typically bold and iconoclastic play by DLA. For a firm to bring in a former managing partner from another firm is rare,” Am Law Daily reporter Chris Johnson wrote in March 2012. According to the article, the 59-year-old Angel was to receive $3 million a year for a three-year term.

With great fanfare, DLA touted its coup. “He’s got great values and he believes in what we’re trying to do and he shares our view of what’s going on in the world,” boasted then co-chair Frank Burch.

At the time, DLA’s press release was equally effusive: “Tony will work with the senior leadership on the refinement and execution of DLA Piper’s global strategy with a principal focus on improving financial performance and developing capability in key markets.”

Predictably, law firm management consultants also praised the move:  “It’s hard to get a guy that talented. There just aren’t that many people out there who have done what he has done,” said Peter Zeughauser. Legal headhunter Jack Zaremski called it a “brave move” that “might very well pay off.”

On second thought…

The current publicity surrounding Angel’s transition is decidedly more subdued. According to a recent Am Law article, Angel and his fellow outgoing global co-chair, Lee Miller, “will remain with the firm in a senior advisory capacity, the details of which will be worked out later this year.”

Two years, plus another 10 months as a lame duck, is a remarkably short period to occupy the top spot of any big firm. Only those who work at DLA Piper can say whether Angel’s brief reign was a success (and why it’s over so soon). Not all of them are likely to provide the same answer.

Separating winners from losers

In 2008, more than three years before Angel’s arrival, the firm’s non-equity partners found themselves on the receiving end of requests for capital contributions. According to Legal Week, “275 partners contributed up to $150,000 each to join the equity.” The move was “intended to motivate partners by granting them a direct share of the firm’s profits, as well as an equal vote in the firm’s decisions.” But it also helped “DLA reduce its bank debt.”

That equitization trend continued during Angel’s tenure. In 2012, the firm’s non-U.S. business reportedly added capital totaling 30 million pounds Sterling “as a result of the move to an all-equity partnership structure.” Again according to Legal Week, the firm’s non-equity partners in the UK, Europe, and Asia Pacific paid on average 61,000 pounds Sterling each to join the equity.”

Perhaps most new equity partners discovered that their mandatory bets became winners. After all, gross profits and average profits for the DLA Piper verein went up in 2012. Then again, averages don’t mean much when the distribution is skewed. According to a Wall Street Journal article three years ago, the internal top-to-bottom spread within DLA Piper was already nine-to-one.

Anyone looking beyond short-term dollars and willing to consider things that matter in the long run could consult associate satisfaction rankings for cultural clues. In the 2013 Am Law Survey of Midlevel Associate Satisfaction, DLA Piper dropped from #53 to #77 (out of 134 firms). That’s still above the firm’s #99 ranking in 2011.

The more things change

Management changes are always about the future. It’s not clear how, if at all, incoming co-chair Roger Meltzer’s vision for DLA Piper diverges from Angel’s. Age differences certainly don’t explain the transition; both men are around 60. Likewise, both have business orientations. Meltzer practices corporate and securities law; Angel joined DLA Piper after serving as executive managing director of Standard & Poor’s in London.

Maybe it’s irrelevant, but Meltzer and Angel also have this in common: Both are high-powered lateral hires. Angel parachuted in from Standard & Poor’s in 2011; Meltzer left Cahill, Gordon & Reindel to join DLA Piper in 2007. It makes you wonder where these guys and DLA Piper will be a few years from now.

SPECTACULAR LIES

Question: “What happens after you’re kicked out of Harvard Law School for creating a phony transcript that inflates your grades?”

Answer: “You get an MBA from Stanford…and you get rich.”

Tragically, a real person, Mathew Martoma, lies at the center of that joke. He’s on trial for what the prosecution has called “the most lucrative insider trading scheme ever charged.”

When ethics is just a word

According to Bloomberg News, Martoma entered Harvard Law School in 1997 as Ajai Mathew Mariamdani Thomas. Born in Michigan and raised in Florida, he graduated from Duke University in 1995 with a degree in biomedicine, ethics, and public policy. Yes, ethics.

For the next two years, he worked at the National Human Genome’s Office of Genome Ethics in Bethseda, where he wrote three medical-ethics papers. Then he enrolled at Harvard Law, where he was a semifinalist in the school’s annual moot court competition, editor of the Journal of Law and Technology, and co-founder of the Society of Law and Ethics. Yes, ethics, ethics, and more ethics.

A bad turn

At Harvard, Thomas received “excellent grades,” but apparently not sufficiently excellent for him to show his parents (or so he later told a Harvard panel investigating his misconduct). So he created a phony transcript: Civil Procedure went from B to A; Contracts from B+ to A; and Criminal Law from B to A. He didn’t change his grades in Torts (B+), Negotiation (A-), or Property (A).

The fake transcript became the most important element in Thomas’ applications for a federal appellate court clerkship. A clerk for one of the judges thought something about the transcript seemed amiss and contacted Harvard’s registrar. The registrar confronted Thomas. According to the investigating panel’s subsequent report, Thomas told the registrar, “It was all a joke.”

Appearing before the Harvard panel, he dropped the “joke” defense. Instead, the panel noted that “Mr. Thomas was apparently under extreme parental pressure to excel academically.”

Thomas appealed the Harvard panel’s decision recommending his dismissal. According to the government’s motion in his current insider trading trial, he then fabricated a forensic report in support of his administrative appeal. The Harvard Law School faculty voted to expel him on September 17, 1999.

A fresh start

By 2001, Ajai Thomas had changed his name to Mathew Martoma and he was on his way to Stanford Business School. In 2003, he received an MBA and went to work for a Boston hedge fund. In 2006, he joined SAC Capital.

According to the NY Times, in January 2009 Martoma received a $9.4 million dollar bonus for his prior year’s performance in SAC’s healthcare group. During 2008, he’d made trades in Wyeth and Elan stock that netted his employer a lot of money, but also led to his current legal difficulties. Bloomberg reports that SAC fired him in September 2010 because, as one SAC executive allegedly put it, he was a “one-trick pony” whose trades in 2009 and 2010 lost money. A federal jury will decide his fate.

For your consideration

Wholly apart from whether Martoma is guilty of insider trading, his story provides an opportunity to contemplate issues that transcend him personally. For example, when should adult children stop blaming parents for their own misbehavior? Relying on that excuse blocks introspection that leads to personal improvement.

Likewise, did Martoma’s application to Stanford acknowledge his expulsion from Harvard? If so, how could Stanford have admitted him? If not, will Stanford rescind his MBA? The answers could have implications for the integrity of a world-class educational institution.

Finally, what insight into institutional behavior does Martoma’s experience provide? Harvard Law School gave him due process in a lengthy administrative hearing, deliberated carefully, and expelled him. The need to preserve the institution’s long-term values guided its conduct.

In contrast, SAC Capital apparently focused on short time horizons. A good year got Martoma big bucks; a bad year thereafter got him fired.

When it comes to their temporal mindsets, most big law firms today look more like SAC Capital than Harvard Law School. Following the business world’s approach — maximizing short-term results — has produced stunning equity partner profits. But sometimes, current profits have come at the expense of long-term values that don’t lend themselves to a simple metric. Those values include collegiality, loyalty, mentoring, institutional stability, and even client value.

So the next time someone says that the law is just another business, ask yourself if that’s a good thing. Consider whether some aspects of the law as a profession are worth preserving. And think about the unfortunate journey of Mathew Martoma.

ART, LIFE, AND THE GOOD WIFE

The writers of the hit television series, The Good Wife, are onto something. Recently, Alicia Florrick and several senior associates left Lockhart & Gardner to form a new firm. They took a big client with them.

Art imitates life

One scene in particular is a reminder that fiction can reveal profound truth. Sitting in his office, Will Gardner concludes that Florrick and other former colleagues betrayed him just by leaving. He resolves that he’s going to get even by making his firm the biggest in the country: “I’m going to destroy the competition.”

Gardner wasn’t looking for a few talented attorneys who would serve particular client needs while enhancing the culture of his institution. He wasn’t seeking to shore up an area of lost expertise. He wasn’t even pursuing growth because it would benefit his firm financially. Rather, he wanted to preside over a big firm that would be significant – even intimidating – solely because of its bigness.

He instructed fellow partners to target rainmakers at other firms as potential lateral hires, announced the opening of a New York, and rolled out the firm’s new logo — “LG.” He wanted growth for the sake of growth. No other plan. No strategic vision. No institutional mission beyond getting bigger.

Real-life managing partners wouldn’t be so stupid, right?

Many large law firms are making news with their efforts to grow. This phenomenon is somewhat perplexing because law firm management consultants have reported for a long time that there are no economies of scale in the practice of law. In fact, they say, maintaining the infrastructure necessary to support growth pushes the bottom line the wrong way.

But in today’s no-growth era, many managing partners worry more about the top line. They want to acquire books of business through aggressive lateral hiring of other firms’ rainmakers and, in some cases, the ultimate lateral event – merger with another firm.

A path to where, exactly?

For the profession overall, the lateral hiring/merger craze is a zero-sum game. For individual firms asserting that clients somehow drive the process, it’s dubious at best.

“I’m pretty skeptical about the value these big mergers give to clients,” IBM’s general counsel, Robert Weber, said recently. “I don’t know why it’s better to use a bigger firm.” And that’s from a guy who spent 30 years at Jones Day — one of the biggest law firms in the country — before joining IBM seven years ago.

In The Good Wife, creating a big firm is part of Will Gardner’s personal vendetta. In the real world, vindictiveness isn’t the reason that most managing partners build bigger firms. But personal ego is often part of the equation. Many leaders see themselves as modern-day versions of Alexander the Great. The desire to stand atop an empire is irresistible.

In the coming weeks, Gardner will probably press ahead to create a large enterprise where name recognition alone confers an illusory prestige. Even if his fellow partners are inclined to question or, God forbid, disagree, they won’t speak up.

If Alicia Florrick were still there, she might have had the courage to challenge him. After all, she and Will had a steamy affair and her husband is now Illinois Governor-elect. But Alicia is gone and Will rules his firm with an iron fist, bare and unadorned with a velvet glove. At Lockhart & Gardner — as at many big firms – dissent is not a cherished partnership value.

There’s one more interesting aspect of Gardner’s battle cry. He hasn’t learned from his mistakes. In season two, Lockhart & Gardner merged with Derrick Bond’s Washington, DC firm. The clash of cultures and personalities nearly destroyed Gardner’s firm. Like all talented lawyers possessing the skill to distinguish away adverse precedent that doesn’t suit their current views, Gardner must think that this time will be different.

Luckily for him, Lockhart & Gardner is fictional. Notwithstanding his poor leadership decisions, the writers can craft a story line that will keep him and his firm going until the show’s ratings fall. Some real law firms won’t be as fortunate.

“I AM A DICTATOR.”

Some people think that law professors are boring. A dean in Cleveland is proving them wrong.

A year ago, Case Western Reserve Law School Dean Lawrence Mitchell burst onto the national scene with a New York Times op-ed selling a law degree as a great deal. Shortly thereafter, he gave a Bloomberg Law interview in which he continued to press his case. For his efforts, Mitchell took center stage in my article, “The Law School Story of the Year – Deans in Denial.”

Well, he-e-e-e-e’s b-a-a-a-a-c-k! Mitchell is now the leading man in what is becoming a tragedy for his school.

The principal antagonists

Raymond S.R. KU, became a tenured professor at Case in 2003, co-director of the Center for Law, Technology & the Arts in 2006, and associate dean for academic affairs in 2010. On Halloween 2013, Ku filed an amended complaint against Lawrence Mitchell and Case Western Reserve University for alleged retaliation because he opposed “Dean Mitchell’s unlawful discriminatory practice of sexually harassing females in the law school community.”

Lawrence Mitchell became dean in 2011. The complaint alleges that he arrived from George Washington University Law School with some personal baggage, including several marriages culminating in divorces, one of which involved a student. If the allegations about his conduct after becoming dean at Case are true, his behavior was both stupid and reprehensible. (Spoiler alert: the details are less titillating than most voyeurs might like — and the juiciest stuff is hearsay. UPDATE: Dean Mitchell has moved to strike many of the allegations as “immaterial, impertinent, and scandalous.)

Hubris revealed?

Buried in the salacious allegations that have generated media attention is paragraph 86 of the amended complaint: “In relation to the performance of his duties as dean of the Case Law School, Dean Mitchell stated vehemently, ‘I am a dictator.'”

Allegations aren’t evidence. Maybe he never said it. But what if he did? Maybe he was joking. Or maybe he believed it. Or, worst of all, maybe it was true.

In many respects — from framing a school’s mission to creating annual budgets to doling out office assignments — deans wield enormous power. But the best deans aren’t dictators; they’re consensus builders. They have line accountability to university provosts, presidents and trustees; however, they also have to deal effectively with students, alumni, and faculty. Any dean who likens his role to that of a dictator eventually becomes a problem for his institution.

Dollars behind the drama?

As the controversy swirls around Mitchell, a very good law school suffers. Case graduated 223 new attorneys in 2010. The entering first-year class of 2013 includes fewer than half that number — 100. Apparently, Mitchell’s year-end sales pitch landed on deaf ears.

In his Bloomberg Law interview last January, Dean Mitchell said, “Of course, we’re running a business at the end of the day.” From that perspective, perhaps Case University’s central administration doesn’t view things as badly as Case’s 1L numbers might suggest.

Specifically, there’s gold in law school LLM students, and Case has 85 of them entering its program this year. For a school with only 100 first-year JD students, that’s a lot. (The University of Chicago has 196 entering JD-students and 70 LLM-students.) In contrast to more extensive financial aid available for JD students, those seeking an LLM at Case are eligible only for “a limited number of merit scholarships…in the form of a partial reduction for tuition.”

What lies ahead?

Perhaps Mitchell’s business plan has been to follow the money, focusing on the lucrative LLM recruits. Maybe that’s his vision for the school as a profit-maximizing venture. Maybe that’s precisely the direction that his bosses want him to take. Maybe Case’s central administration has given Mitchell such latitude to wield power that he feels comfortable boasting about it. Or, as I suggested at the beginning, perhaps there’s no substance to any of the claims against him.

If it turns out that Mitchell’s superiors are rewarding what they regard as “business success” by allowing him to run the school as a dictator, they have forgotten an important truth. Sometimes dictators get deposed — especially if they’re defendants in lawsuits.

ANOTHER BIG LAW FIRM COMBO?

You might think that the leaders of SNR Denton would pause to take a breath after completing the firm’s March 2013 merger with Paris-based Salans and Canadian-based Fraser Milner Casgrain. But according to published reports, almost immediately after closing the Salans/FMC deal to become a 2,700-lawyer mega-verein, Dentons began discussions to add yet another contingent — McKenna Long & Aldridge and its more than 500 attorneys.

As I wrote almost a year ago, the leaders of what had been SNR Denton boasted that they had used no strategic legal consultants or advisers in the process that led to its French-Canadian three-way. But they did have “branding and advertising advisers” who recommended the entity’s new name, Dentons.

I don’t know if Dentons’ leadership is getting advice on its current potential merger, but if it goes through, the McKenna Long & Aldridge brand seems likely to disappear — as did Sonnenschein’s, Salans’, and Fraser Milner Casgrain’s. Then again, the Luce Forward Hamilton & Scripps brand disappeared after its 2012 merger with McKenna Long.

The venerable McKenna Long brand won’t be the only casualty. The combined firm would have two offices (each with a significant number of lawyers) in five cities: Washington, Los Angeles, San Francisco, New York, and Brussels. In touting the prospect of creating the world’s third’s largest law firm of more than 3,100 attorneys, no one is estimating the number of likely near-term departures.

Who is being served? Clients?

The rhetoric accompanying most big law firm combinations is usually the same. In response to inquiries about its discussions with McKenna Long, Dentons issued this statement: “Since creating Dentons earlier this year, we have been very clear in our determination to always deepen our capabilities to serve clients in the U.S. and around the world.”

But clients aren’t asking their outside law firms to join with other firms. In fact, most clients understand that no single firm (or collection of firms in a verein) could or should house every attorney most appropriate for their needs throughout the country, much less the world.

Who is being served? Partners of the merging firms?

Perhaps the prospect of financial gain for individual partners underlies the Dentons/McKenna Long discussions. For the Dentons partners who haven’t yet lived through a full year since the Salans/FMC combination, that suggestion seems like a triumph of hope over what is, at best, profound uncertainty.

Maybe the myth that economies of scale accompany the growth of law firms is driving this deal and others that have preceded it recently. But according to law firm management consultants Altman Weil, getting bigger doesn’t make law firms more efficient. It usually works the other way.

On the McKenna Long side, the financial motivation is even less evident. According to the 2013 Am Law rankings, the firm had 2012 average partner profits greater than SNR Denton’s ($930,000 for McKenna Long v. $785,000 for SNR Denton prior to the Salans/FMC merger), along with a better profit margin (26 percent v. 22 percent).

Maybe McKenna Long partners are relying on the verein structure of the combination to preserve their relatively superior economic position. After all, individual firms in a verein retain their financial independence. But as Edwin B. Reeser and Martin J. Foley suggest in their recent article on undisclosed fee-sharing agreements, that structure could also be creating thorny ethical complications when client referrals across member firms within a verein become factors in compensating partners.

Who is being served? Empire builders

For many big firm leaders, growth has become a stand-alone strategic objective. How many of them remember Steven Kumble’s similar view?

Kumble presided over an explosive expansion that, by 1986, made Finley Kumble the second largest firm in the world. As Kumble erected his firm’s global platform from 1977 to 1986, a fellow partner asked him why his goal wasn’t to create the best firm, rather than the biggest one.

Kumble replied, “When you’re the biggest, everyone will think we’re the best.”

He was wrong. As Finley Kumble became one of the biggest firms, no one ever thought it was the best. Through acquisitions of other firms and aggressive lateral hiring of rainmaker partners, Kumble promoted a culture in which money became the glue that held things together — until it didn’t.

In December 1987, Finley Kumble dissolved and its brand became a symbol of monumental law firm failure.