Call them unsung heroes.

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

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

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

On, Wisconsin!

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

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

North Dakota

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

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

Fighting Against the Demographic Tide of History

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

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

Rigged Elections? Yes, But in Whose Favor?

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

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

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

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

No, he sees a different enemy.

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

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

Facts Don’t Matter

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

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

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

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

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

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

Mob Mentality

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

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

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

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

Scorched Earth

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

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

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

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

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

The Real Losers

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

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


Cravath, Swaine & Moore raised first-year associate salaries from $160,000 to $180,000 — the first increase since January 2007. As most law firms followed suit, some clients pushed back.

“While we respect the firms’ judgment about what best serves their long-term competitive interests,” wrote a big bank’s global general counsel, “we are aware of no market-driven basis for such an increase and do not expect to bear the costs of the firms’ decisions.”

Corporate clients truly worried about the long-run might want to spend less time obsessing over young associates’ starting salaries and more time focusing on the behavior of older attorneys at their outside firms. In the end, clients will bear the costs of short-term thinking that pervades the ranks of big firm leaders. Some already are.

Historical Perspective

Well-paid lawyers never generate sympathy. Nor should they. All attorneys in big firms earn far more than most American workers. But justice in big law firms is a relative concept.

Back in 2007 when associate salaries first “jumped” to $160,000, average profits per equity partner for the Am Law 100 were $1.3 million. After a slight dip to $1.26 million in 2008, average partner profits rose every year thereafter — even during the Great Recession. In 2015, they were $1.6 million — a 27 percent increase from seven years earlier.

In 2007, only 19 firms had average partner profits exceeding $2 million; in 2015 that group had grown to 29. But the average doesn’t convey the real story. Throughout big law, senior partners have concentrated power and wealth at the top. As a result, the internal compensation spread within most equity partnerships has exploded.

Twenty years ago, the highest-paid equity partner earned four or five times more than those at the bottom. Today, some Am Law 200 partners are making more than 20 times their lowest paid fellow equity partners in the same firm.

It Gets Worse

Meanwhile, through the recent prolonged period of stagnant demand for sophisticated legal services, firm leaders fueled the revolution of partners’ rising profits expectations by boosting hourly rates and doubling leverage ratios. That’s another way of saying that they’ve adhered stubbornly to the billable hours model while making it twice as difficult for young attorneys to become equity partners compared to 25 years ago.

The class of victims becomes the entire next generation of attorneys. Short-term financial success is producing costly long-term casualties. But those injuries won’t land on the leaders making today’s decisions. By then, they’ll be long gone.

So What?

Why should clients concern themselves with the culture of the big firms they hire? For one answer, consider two young attorneys.

Associate A joins a big firm that pays well enough to make a dent in six-figure law school loans. But Associate A understands the billable hour regime and the concept of leverage ratios. Associate attrition after five years will exceed 80 percent. Fewer than ten percent of the starting class will survive to become equity partners. Employment at the firm is an arduous, short-term gig. In return for long-hours that overwhelm any effort to achieve a balanced life, Associate A gets decent money but no realistic opportunity for a career at the firm.

Associate B joins one of the few firms that have responded to clients demanding change away from a system that rewards inefficiency. Because billable hours aren’t the lifeblood of partner profits, the firm can afford to promote more associates to equity partner. Associate B joins with a reasonable expectation of a lengthy career at the same firm. Continuity is valued. Senior partners have a stake in mentoring. The prevailing culture encourages clients to develop confidence in younger lawyers. Intergenerational transitions become seamless.

Associate A tolerates the job as a short-term burden from which escape is the goal; Associate B is an enthusiastic participant for the long haul. If you’re a client, who would you want working on your matter?

The Same Old, Same Old

As clients have talked about refusing to pay for first-year associate time on their matters, big firms’ upward profit trends continue. But the real danger for firms and their clients is a big law business model that collapses under its own weight.

As it has for the past eight years, Altman-Weil’s recently released 2016 “Law Firms In Transition” survey confirms again the failure of leadership at the highest levels of the profession. Responses come from almost half of the largest 350 firms in the country. It’s a significant sample size that provides meaningful insight into the combination of incompetence and cognitive dissonance afflicting those at the top of many big firms.

When asked about the willingness of partners within ten years of retirement to “make long-term investments in the firm that will take five years or more to pay off,” fewer than six percent reported their partners’ “high” willingness to make such investments. But at most firms, partners within ten years of retirement are running the place, so the investments aren’t occurring.

Almost 60 percent of firm leaders reported moderate or high concern about their law firms’ “preparedness to deal with retirement and succession of Baby Boomers.” Meanwhile, they resolve to continue pulling up the ladder, observing that “fewer equity partners will be a permanent trend going forward” as “growth in lawyer headcount’ remains a “requirement for their firms’ success.”

Do law firm leaders think they are losing business to non-traditional sources and that the trend will continue? Survey says yes.

Do law firm leaders think clients will continue to demand fundamental change in the delivery of legal services? Survey says yes. (56 percent)

Do law firm leaders think firms “are serious about changing their legal service delivery model to provide greater value to clients (as opposed to simply reducing rates)”? Survey says no. (66 percent)

Do clients think law firms are responding to demands for change? Survey says most emphatically no! (86 percent)

But do law firm leaders have confidence that their firms are “fully prepared to keep pace with the challenges of the new legal marketplace”? Survey says yes! (77 percent)

If cognitive dissonance describes a person who tries to hold two contradictory thoughts simultaneously, what do you call someone who has three, four or five such irreconcilable notions?

At too many big law firms the answer is managing partner.


Colleges have entered a game that law schools have been playing for years. According to a recent New York Times front page headline, “Colleges Seek Warm Bodies From Overseas.” The title of the online version was equally pointed: “Recruiting Students Overseas to Fill Seats, Not to Meet Standards.

For years, law schools have been dropping standards to fill classrooms. Marginal schools have been the worst offenders, and the profession is now paying the price in declining bar passage rates. But even among top schools, a more subtle and profitable technique has pervaded law school business plans for years: expanding LLM programs.

The Numbers

From 2006 to 2013, the number of law students enrolled in non-JD programs increased by almost 50 percent — to more than 11,000. Leading the way are LLM programs that now exist at more than 150 law schools. And students from foreign countries are flocking to them.

What began decades ago as a noble effort to encourage international cultural diversity has become a cynical method of revenue generation. The Times article focuses on colleges that use foreign recruiters. But its money quotes apply to law schools:

“[T]he underlying motivation for the university…is to get warm bodies in the door.”

“It is ethically wrong to bring students to the university and let them believe they can be successful when we have nothing in place to make sure they’re successful.”

“[C]olleges began to look at foreign students, who pay full tuition, as their financial salvation.”

Need Money?

Warm bodies. Graduate outcomes that aren’t the schools’ problem. Students who pay full tuition. If you’re running a law school as a business, the solution to declining revenues from a JD program becomes three letters: LLM.

Professor George Edwards at the Indiana University Robert H. McKinney School of Law explains:

“I would like to think that U.S. law schools are creating LLM programs or expanding existing programs primarily for altruistic reasons…The reality is that law schools are businesses, and to stay afloat they must generate revenue to pay law school expenses, such as faculty salaries. Law school revenues primarily come from tuition revenues, and revenues are down due to fewer U.S. students enrolling in the degree programs for the basic U.S. law degree, the JD.”

“U.S. law schools have been seeking ways to make up for lost revenue,” Professor Edwards continues. “One way is to create or expand enrollment for international LLM students who may not have the same worries that are driving JD enrollment downwards.”

And so, he concludes,

“The desire to increase law school revenue has triggered a proliferation of new LLM programs and triggered the expansion of existing LLM programs.”

So What’s the Problem?

What exactly should a law school’s mission be? Some deans are unwilling to ask the question because they fear honest answers: revenue generation, short-term profits, and maximizing U.S. News rankings. Moving away from those safe harbors risks reorienting the profession toward what it was when they decided to become lawyers.

An institution’s mission statement should be the starting point for every decision its leaders make. Law schools are no exception. From the faculty hired to students admitted to programs offered, clear goals produce coherent behavior. But at law schools throughout the country, discussions about objectives — what they are and what they should be — aren’t happening.

Restating platitudes is easy. Developing a statement of principles to govern conduct is a challenge. Requiring consistent action in accordance with those principles creates accountability.

For centuries, the legal profession has occupied a transcendent role in the preservation of civilization. Law schools have been the custodians of that tradition. To retain that stature, the people who run them should view their responsibilities as something more than managing just another business. If they don’t, their schools will become exactly that.


Recently, the New York Times devoted a special section of “Dealbook” to short-termism. Big law firms made a prominent appearance in an article focusing on leadership transition. Citing statistics at the managing partner level, the Times reports that only three percent of law firm managing partners are under age 50. Twelve percent are over 70. Almost half are between 60 and 70.

The Tip of the Graying Iceberg

The core problem of transition runs deeper than a single demographic data point about the age of those at the top of the big law pyramid. The developing crisis goes far beyond the question of who the next managing partner will be.

At most firms, aging partners at all partnership levels are hanging on to clients and billings. For them, it’s a matter of survival. Except for lock-step firms, equity partners “eat what they kill” — that is, their closely guarded silos of clients and billings determine their annual compensation.

In that culture, hoarding becomes essential to preserving annual compensation that partners come to regard as rightfully theirs — and theirs alone. Stated in language that many senior partners use in criticizing today’s young attorneys, these aging lawyers have developed a wrong-headed sense of entitlement.

The fact that they’re making far more than they dreamed of earning in law school doesn’t matter to them. Neither does the fact that they are compromising the future of their firms. But their short-term gains could become the institution’s long run catastrophe.

See the Problem

Surveys confirm that law firm leaders recognize the resulting problem. Seven years ago, Altman Weil issued the first of its annual “Law Firms in Transition” series. Since then, the survey has documented a fundamental failure of leadership on this issue.

For example, in the 2011 survey, Altman Weil asked firm leaders to name the areas in which they had the greatest concerns about their firms’ preparedness for change: “The top issue, identified by 47% of all firms, was the retirement and succession of Baby Boom lawyers in their law firms.”

In the 2012 survey, 70 percent of managing partners had “moderate” or “high” concern about client transition as senior partners retire. On a scale of one (no concern) to ten (extreme concern), the median score was seven.

In the 2013 survey, only 27 percent of managing partners reported that they had a formal succession planning process in place.

Ignore the Problem

How have these leaders responded to what they have identified for years as the most pressing long-term problem facing their firms? Poorly.

The 2015 survey observes, “In 63% of law firms, partners aged 60 or older control at least one quarter of total firm revenue, but only 31% of law firms have a formal succession planning process.”

There’s a reason that law firm leaders balk at meaningful transition planning. It requires them to accept the fact that they won’t run their firms forever. But contemplating one’s own mortality can be unpleasant.

It also requires them to rethink their missions. Leadership is not about maximizing this year’s partner profits or pursuing growth for the sake of growth to create illusory empires over which a dictator can preside. It requires a willingness to create incentive structures that encourage long-term institutional stability.

Toward that end, lofty aspirations are easier to state than to achieve. But here are a few governing principles:

— Client service should be central to everything a law firm does.

— Partner cooperation should trump partner competition.

— Clients and billings should flow seamlessly to the next generation while allowing aging partners to retain a sense of self-worth as firms encourage them to prepare for their “second acts,” whatever they may be.

— The culture of a firm should encourage partners to sacrifice some short-term financial self-interest in the effort to leave the firm better than they found it — just as their mentors did for most of them.

Become the Problem

The most creative leaders understand that all of this means thinking outside the conventional billable hour box that remains central to the short-term growth and profit-maximizing mindset. In that respect, the contrast between the absence of true leadership and clients’ desires is striking.

Since 2009, Altman Weil has done an annual survey of corporate chief legal officers, too. The survey asks the CLOs: “How serious are law firms about changing their legal service delivery model to provide greater value to clients?”

The responses are on a scale of one (not at all serious) to ten (doing everything they can), Every year since the survey began, the median score has been three. Three out of ten. Stated differently, as far as clients are concerned, their outside lawyers have little interest in responding to demands for change.

Likewise, LexisNexis/Counsel Link’s most recent semi-annual report analyzing six key metrics confirms the impact of short-termism:

— Clients want alternative fee arrangements. AFAs account for only seven percent of all billings.

— Clients want relief from high hourly rates. For the trailing 12-month period ending on June 30, 2015, big firms of more than 750 attorneys had a median partner billing rate of $711 an hour — up 6 percent from the period ending on December 31, 2014. (For firms of 501-750 lawyers the median hourly rate during the same period increased by only $5 an hour.)

The Future Is Here

As big firm leaders drag their feet, clients aren’t waiting for them. They have figured out that the biggest of big law premiums isn’t always worth it. An October 2013 study of $10 billion in client fee invoices by LexisNexis/Counsel Link concluded the “large enough” firms of 201-500 lawyers are eating into the market share of firms with more than 750 lawyers.

From 2010 to 2013, the biggest firms saw their market share drop from 26 percent to 22 percent. Meanwhile, the market share of the “large enough” firms increased from 18 to 22 percent. For high-fee matters totaling $1 million or more, the shift was even more dramatic: “large enough” firms increased their market share from 22 to 41 percent.

Anyone believing that most big law firm leaders are long-term thinkers preparing their firms for a challenging future is ignoring the actual behavior of those leaders. Most of them are focused on getting rich today. That’s not a strategy for success tomorrow.


The legal profession could learn something from the events culminating in Tim Wolfe’s resignation as president of the University of Missouri system. So could all of higher education. But those lessons have little to do with race.

Who is Tim Wolfe?

He’s a businessman.

Wolfe’s family moved to the Columbia, Missouri area when he was in fourth grade. For 30 years, his father was a communications professor at the University of Missouri. Wolfe quarterbacked his high school football team to a state championship. He earned an undergraduate degree from MU in personnel management.

After college, Wolfe became a sales rep for IBM where he worked his way up to vice president and general manager of its global distribution center. After 20 years at IBM, he became executive vice president of a consulting services company. From there, he moved to software maker Novell Americas, where he was president when another company acquired Novell and left him unemployed.

In December 2011, the University of Missouri’s board of curators announced Wolfe’s selection as its 23rd president. His base salary was $459,000.

What Happened? For a While, Not Much

As recently as August 2014, the board of curators thought that Wolfe’s performance had earned him a contract extension from February 2015 through June 2018. A year later, his troubles began.

On September 12, the president of the Missouri Student Association posted a Facebook item about vile racist slurs he’d received. By October 10, a group calling itself Concerned Student 1950 (the year Mizzou first admitted black students) staged a homecoming parade protest. On October 20, the group issued eight demands, including the ouster of Wolfe.

Exactly what he did to make such a shortlist is far from clear. The New York Times and the Wall Street Journal put some blame on his proposal to close the university’s respected press as a cost saving measure. But he withdrew that proposal after hearing from objectors.

The Times and the Journal also implied that Wolfe was responsible for canceling health insurance for graduate students. But that situation is more complicated. As the graduate studies office announced in August, new Affordable Care Act requirements prevented the university from paying those premiums. Instead, the university would provide a one-time stipend to all qualified graduate students. Under the ACA, the university said, it was unable to link the stipend to health insurance or to ask whether recipients needed or planned to purchase a policy. Failure to implement the new IRS regulations would have resulted in fines of $100 per student.

Was It Race?

After a swastika with feces appeared in a campus bathroom on October 24, Concerned Student 1950 met with Wolfe personally. Three days later, one of the protest organizers announced a hunger strike. On November 6, a student posted a video in which protesters asked Wolfe to define systematic oppression.

“I’ll give you an answer, and I’m sure it will be a wrong answer,” he said. “Systematic oppression is because you don’t believe that you have the equal opportunity for success.”

“Did you just blame us for systematic oppression, Tim Wolfe?” shouted a protester. “Did you just blame black students?”

Wolfe’s insensitive comments were unfortunate. But they’re not the sort of thing that costs a university president his job. And they didn’t cost Wolfe his — until the football team weighed in.

And Then…

On Saturday, November 7, the entire Mizzou football team — 84 scholarship players and their coaches — proclaimed unanimous solidarity with the protest movement. Within 36 hours, Wolfe resigned.

Like many universities, the University of Missouri created the monster that can devour it. College football is big business, especially in the Southeastern Conference. The average SEC head football coach makes almost $4 million a year. President Wolfe’s base salary was about one-tenth of what the school pays coach Gary Pinkel. Throughout the country, college football generates enormous revenues that pay for coaches, athletic scholarships, and stunning athletic facilities.

Whether and to what extent this circle of riches makes its way back to support a school’s principal mission — educating young people — isn’t clear. Earlier this year during its dispute over whether college players could unionize, Northwestern University claimed that, considered as a whole with other sports that football subsidized, the athletic programs were money-losers for the school. On November 7, Northwestern broke ground on a new $260 million athletic facility.

Pocketbook Threat

The tipping point for Wolfe came when the football team — with a mediocre record of four wins and five losses — said it would boycott its November 14 game against BYU. That game alone would have cost the university $1 million. But the potential impact could be far greater if the team fails to win the two more games needed to qualify for a postseason bowl appearance.

Now we come to the lesson for big law firms. The internal gap between the highest and lowest paid equity partners at most firms is enormous and growing. Likewise, the frenzy to recruit lateral rainmakers continues unabated. Those trends have produced a “don’t-get-me-angry” group that is analogous to what many college football teams have become. A handful of individuals exerts disproportionate influence over an entire institution, but the resulting culture affects everyone.

Football Cognitive Dissonance

Society is conflicted about football. Every weekend, millions of people watch college games. I’m among them. Our behavior creates market demand that gives college football an outsized influence over higher education.

At the same time, we’ve become uncomfortable with some of the adverse individual consequences that the market doesn’t consider, such as lifelong brain damage from concussions. Economists call these externalities. It’s one reason that half of Americans don’t want their sons playing tackle football. When things get personal, they’re somehow different.

Big Law Cognitive Dissonance

Likewise, most law firm managing partners admit that recruiting high-powered rainmakers doesn’t usually improve their firms’ financial performance. Independent studies confirm that lateral hiring is dubious strategy. Yet the lateral frenzy continues as newly hired partners parachute into the top ranks of many firms.

Unfortunately, short-run disappointment with the financial impact of a lateral hire is the least of the problems associated with aggressive inorganic growth. The strategy can destroy a firm’s cohesion, impair its sense of professional mission, and increase its vulnerability to financial shocks. In the resulting environment, everyone in the institution suffers.

Living through the financial and cultural consequences of lateral hiring failures could have prompted law firm leaders to rethink their strategic plans. But that hasn’t happened. After all, such a reversal would require leaders to overcome their confirmation bias, transcend hubris, and admit mistakes. That’s less likely than a major university relegating football to its proper place in the institution’s broader educational mission.

By the way, Mizzou may also offer a lesson to some law school deans: make friends with your university’s football coach.


The recent New York Times editorial on the law student debt crisis didn’t attack all law schools as “scams.” Rather, along with Law School Transparency’s recent report, it exposed a soft underbelly. But in defending the bad behavior of others, many law professors and deans are doing themselves, their schools, and the profession a great disservice.

It’s a puzzling situation.

In my 30-year career as a litigator at Kirkland & Ellis, I encountered plenty of bad lawyers. I regarded them as embarrassments to the profession. But I didn’t defend their misconduct. Good doctors don’t tolerate bad ones. Gifted teachers have no patience for incompetent colleagues.

The Opposite of Leadership 

Yet the top officers of the Association of American Law Schools sent a letter to the Times editor that began:

“The New York Times fails to make its case on law school debt.”

AALS president Blake Morant (dean of George Washington University Law School), president-elect Kellye Testy (dean of the University of Washington School of Law), and executive director Judith Areen (professor and former dean at Georgetown Law and former AALS president) then explained why all is well.

If those AALS leaders speak for the organization, a lot of law deans should consider leaving it. Rather than serving the best interests of most law schools, publicly defending the bottom-feeders — while saying “no” to every proposal without offering alternatives — undermines credibility and marginalizes otherwise important voices in the reform process.

Using a Poster Child to Make a Point

The Times editorial looked at Florida Coastal, about which certain facts are incontrovertible: low admission standardsdismal first-time bar passage ratesaverage debt approaching $163,000 for the 93 percent of its 2014 graduates with law school loans; poor JD-employment prospects (ten months after graduation, only 35 percent of the school’s 2014 class had full-time long-term jobs requiring bar passage).

Florida Coastal isn’t alone among those exploiting law school moral hazard. Without any accountability for the fate of their graduates, many schools feed on non-dischargeable federal loans and the dysfunctional market that has allowed them to survive.

Predictable Outrage from a Inside the Bubble

In June, Scott DeVito became Florida Coastal’s new dean. In an interview about his strategic plans, he said, ““We’re going to have to build more on the parking garage because people will want to go here.”

Predictably, DeVito pushed back hard against the Times’s op-ed. (The newspaper published only a portion of his two-page letter.) He boasts that his school’s first-time bar passage rate was 75 percent in February 2015 — third best of the state’s 11 law schools. That’s true.

But the February session typically includes only 50 to 60 Florida Coastal first-time test-takers annually. DeVito doesn’t mention more recent results from the July 2015 administration, which usually includes 200 to 300 Florida Coastal grads each year: 59.3 percent first-time bar passage rate — eighth out of eleven Florida law schools.

From 2010 to 2014, the school’s July results were:

2010: 78.8% (7th out of 11)

2011: 74.6% (8th)

2012: 75.2% (9th)

2013: 67.4% (10th)

2014: 58.0% (10th)

Who among America’s law school deans is willing to defend that performance record? Their professional organization, the AALS, seems to be.

Facts Get in the Way

DeVito acknowledges that his students’ law school debt is high, but says that’s because, as a for-profit school, “taxpayers are not paying for our students’ education.” That’s a remarkable statement. Florida Coastal and every other law school receives the current system’s inherent government subsidies: non-dischargeable federal student loans, income-based repayment (IBR), and loan forgiveness programs.

Likewise, DeVito asserts that Florida Coastal students “repay their loans,” citing the school’s low default rate. The AALS letter makes the same point: “[M]ost law students…are able to repay and do. The graduate student default rate is 7 percent versus 22 percent for undergrads.”

That argument is disingenuous. The absence of a default doesn’t mean a graduate is repaying the loan or that the day of reckoning for deferred or IBR-forgiven debt will never arrive for students and taxpayers. In fact, it’s inconsistent to assert that law students “repay their loans” while also touting the benefits of IBR and loan forgiveness because students in those programs will never have to repay their loans in full. (And they still won’t be in default!)

Not Defaulting Is Not the Same as Repaying

A recent Department of Education report on colleges highlights the extent to which the absence of default is not equivalent to repayment. There’s no similar compilation for law schools, but an April 2015 Federal Reserve Bank of New York Report on Student Loan Borrowing and Repayment trends generally notes that while only 11% of all educational loan borrowers are in default, “46% of borrowers are current in their loans but are not in repayment. Only 37% of borrowers are current on their loan and actively paying down.” (Emphasis supplied)

As the New York Fed reports, the worsening repayment rate is exacerbating the long-term debt problem for students and taxpayers: “The lower overall repayment rate [compared to earlier years] helps explain the steady growth in aggregate student debt, now at nearly 1.2 trillion dollars.”

Righting Wrongs?

Finally, DeVito takes a noble turn, claiming that it “takes a for-profit entity to right a wrong — in this case the lack of diversity in law schools.”

In “Diversity as a Law School Survival Strategy,” St. Louis University School of Law Professor Aaron N. Taylor explains that marginal schools with the worst graduate employment outcomes have become diversity leaders: “[T]he trend of stratification may only serve to intensify racial and ethnic differences in career paths and trajectories.”

Rather than righting a wrong, it looks more like two wrongs not making a right.

A Few Profiles in Courage

To their credit, Professors William Henderson (Indiana University Maurer School of Law) and David Barnhizer (Cleveland-Marshall College of Law), among others, have embraced the Times’s message that Brian Tamanaha (Washington University School of Law) offered years ago: The current system is broken. Recognize it; accept it; help to lead the quest for meaningful reform.

Likewise, Loyola School of Law (Chicago) Dean David Yellen worries about schools that are “enrolling large numbers of students whose academic credentials suggest that they are likely to struggle gaining admission to the bar… [T]he basic point is an important one that legal education must address.”

The Real Enemy

DeVito’s effort to spin away Florida Coastal’s problems is understandable. Properly implemented, school-specific financial accountability for employment outcomes would put maximum pressure on the weakest law schools. Frankly, the demise of even a single marginal law school would come as a welcome relief. Since the Great Recession we’ve added law schools, not eliminated them.

That’s why most law schools and their mouthpiece, the AALS, should side with Dean Yellen and Professors Henderson, Barnhizer, Tamanaha, and others urging meaningful reform. To test that hypothesis, try this:

The next time someone says that introducing financial accountability for individual schools would be a bad idea, ask why.

The next time someone says that respectable law schools serving their students and the profession should not distance themselves from marginal players that could never survive in a functioning market for legal education, ask why not.

The next time someone says that a united front against change is imperative, ask who the real enemy is.

Then offer a mirror.


Watching the Chicago Cubs make their way into the National League Championship Series causes me to reflect on one of my favorite themes: baseball as a metaphor for life. It might have something to tell big law firms, too.

I focus on the Chicago Cubs because I’ve watched the team since the season began. Before giving up on them several years ago, I was a fan for three decades that started with the birth of our first child in 1981. He and his siblings qualify as long-suffering lifetime fans. For many years, we had season tickets.

As an adult, I knew little of Cubs’ fan angst because I grew up in Minneapolis — an American League city where some of the best entertainment was watching then-Twins coach Billy Martin get thrown out of games during the team’s 1965 pennant run. (Famously, Sandy Koufax refused to pitch in game one of that World Series because it fell on Yom Kippur.  He then won games five and seven — pitching complete game shutouts in both.)

After years of Cubs’ frustration, what’s working now? That’s where parallels to big law emerge.


The Cubs have stars on their roster. Jake Arrieta, Jon Lester, Anthony Rizzo, Addison Russell, and Kris Bryant have become household names in Chicago and beyond. As in a law firm, talent is a necessary condition for success.

But talent alone is not sufficient. Just ask former partners of Dewey & LeBoeuf — a firm loaded with talent.


When shortstop Addison Russell went down with a pulled hamstring in game three of the National League Division Series, Cubs fans gasped. But the team didn’t fold. Javier Baez was ready to take the field. In game four of the series, Baez hit a three-run homer that turned the tide in the Cubs’ favor.

At shortstop — and every other position — the Cubs have a backup plan. According to Altman Weil’s 2015 Report, “Law Firms In Transition,” only 31 percent of law firms have a formal succession planning process in place.

Most big law firm partners resist transition because it vests younger attorneys with the power to claim a share of client billings. Likewise, most firms offer no financial incentive for partners to mentor young attorneys. There’s no way to bill that time.


From July through September and into early October, Cubs ace pitcher Jake Arrieta seemed unstoppable. Then he gave up four runs in the fist five innings of League Division Series game 3. Relief pitchers stepped in and Cubs hitters stepped up. The Cubs won 8-6.

In post-game interviews following game four, the latest Cubs phenomenon, Kyle Schwarber, echoed what many other players said: “We pick each other up. When one guys is off, others step up. We have each other’s back.”

At many big firms, some partners seem determined to put sharp objects into the backs of their fellow partners.


Cubs manager Joe Maddon doesn’t offer brash, self-aggrandizing remarks. He leads by quiet example. He expects players to do their best on the field, but he encourages balance in their lives. To emphasize his point, sometimes he cancels batting practice, especially if the team is in a hitting slump. He wants them thinking about other things.

Sometimes, he locks the clubhouse door until two or three hours before game time. Don’t show up early; you won’t have anything to do when you get there. Maddon wants them to develop lives beyond the field. Imagine a big law partner telling associates to go home at five or six o’clock — and not bill any time after they get there.

Maddon models behavior aimed at achieving balance. Before the season began, he took a dozen players to visit children at the Rehabilitation Institute of Chicago. Throughout the year, Anthony Rizzo, a cancer survivor, made similar trips to hospitals. So did Chris Coghlan and many of his teammates.


Maddon loves the game. He wants everyone around him to love it, too. He keeps the team loose. Sometimes he manages the team like a little league coach, moving players into different positions. Schwarber was behind the plate one game and in the outfield the next; Coghlan played five different positions in a single game; Bryant played four.

Humor is one of Maddon’s principal weapons. At the end of September, he brought exotic animals into the clubhouse. During the pregame media session, he talked to a flamingo named Warren.

“When is the last time you heard about 20-somethings who couldn’t wait to get to work?” Cubs President Theo Epstein asked one interviewer after the game that propelled the Cubs into the League Championship Series.

Perhaps most importantly, Maddon wants players to remember why they chose baseball as a career. Then they’ll realize that they should be enjoying themselves. Many lawyers could benefit from similar introspection.

On a personal note, I thoroughly enjoyed practicing law. But I’m sure glad that I spent time coaching all of my kids’ baseball and softball teams — more than 25 in all. Good luck to any young big law attorney who tries to replicate that feat today. Make the effort. It’s worth it.