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Nasty, Brutish, and Short – And Our Fault

5:31 pm 2011 September 3
by Bruce

And why are we not surprised?

Something jolly to leave you with before the May Day Labor Day Weekend.

The American Lawyer‘s annual “Associate Midlevel Satisfaction” survey is out and satisfaction is at its lowest level since 2004.  The primary reason is simple:  Improved demand + lower associate headcount = more billable hours (up over 4% over last year on average).  An un-named DLA Piper associate put it this way:  “Firms got too lean [after the recession] and consequently realized that associates will work more and more if asked. Quality of life has therefore decreased.”

There are those, yours truly among them, who are even more sympathetic to the people who didn’t get to participate in the survey, because they’re unemployed or at best not working in BigLaw as partner-track associates.

The most penetrating analysis by far of what all this means, and what it portends for the profession/industry as a whole, comes from Steven Harper in Suffering in Silence.  

Steven’s analysis should be required reading not just for all “0L’s” but for the managing partners and executive committee members of the AmLaw 200.

Forgive me for quoting extensively, but you can’t really condense what follows.  This is the text of an online comment to the ABA Journal’s article reporting on the lawsuit filed against Thomas Jefferson School of Law seeking class action certification:

I graduated back in 2003. For eight years, I have never had a steady job, just on-and-off document review. Document review is not real legal training, and after sending out literally thousands of resumes over the years I have given up. In the “good” years, I used to work 80 hours a week, and half my salary would go to student loans. In the last couple of “bad” years, I haven’t been able to pay my loans, and the work has been so unsteady that I have been evicted from my apartment and have had to resort to food stamps. Furthermore, despite eight years having gone by, my loan balance has decreased by just 10 percent. I will never get out of this debt trap, will never own my own home, nor will I be ever able to afford children. I have to take antidepressant medication. I have contemplated suicide. . . . I wish I could move on and wake up from this horrible nightmare.

This is nothing short of heart-breaking.

But what about the select few, those ushered into partner-track associate positions at BigLaw?  Aren’t they in enviable positions?

Even there, of course, we all know better.

The life of a partner-track associate too often resembles how Thomas Hobbes in Leviathan unforgettably described the lives of men in the state of nature, perpetually at war with each other:  “Nasty, brutish, and short.”  “Nasty and brutish” because of everything from  gamesmanship by adversaries (serving the TRO at 6:00 pm Friday, returnable Monday morning) to egotistical and inconsiderate partners, to the rigid implications of a 2,000+ hour year.  “Short” because that’s precisely what it is for many as attrition rates remain closer to those of fast-food employees than to those of highly educated professionals virtually anywhere else in the economy.

But I’m an optimist at heart (as those who are familiar with our other site, Adam Smith, Esq., know well) and part of living with that condition is never being satisfied with simply describing a problem and figuratively hanging up one’ s pen.

So what’s to be done?

Before we can attempt to answer that, we need more particularity about what is causing the problem.

Now, the “problem” for those without jobs or without jobs suitable to their attainments is beyond the scope of things we can affect.  It’s a combination of:

  • this brutal and extended economic downturn (the wise and calm FT financial columnist Martin Wolf writes this week that the downturn bids fair to cause a total greater loss of economic output in Britain than the Great Depression itself);
  • the triple whammy of (a) globalization; (b) technology; and (c) clients’ demands for efficiencies wreaking havoc on what were traditionally tried and true, and evergreen, tasks such as discovery and due diligence that could absorb the time of legions of associates;
  • and the pervasive and historically high levels of fear, uncertainty, and doubt among businesspeople and professionals alike, keeping them from investing largely in the future.

We can’t do much about those factors.

We can do a lot, however, about how we run our own firms and which drummers we choose to march to.

And here Steven Harper points the finger at how we’ve increasingly been running our firms for, say, the past 20 or 30 years:

The prevailing business model has distorted some concepts of value and jettisoned others. At most big firms, productivity equals billed time, without regard to the efficiency of the worker or quality of the end product. Meanwhile, anything that can’t be measured—mentoring, creating a sense of community, delegating important client relationships to young attorneys, and encouraging balanced lives that make better lawyers—gets discounted or lost altogether. […] As a result, behavior that would enhance institutional stability and intergenerational transition yields to the self-interested development of portable books of business.

The problem is that in the arms’ race that has become published PPP statistics, there is no end:

Among large-firm equity partners, a revolution of rising expectations has continued for two decades. Recessions come and go, but somehow average equity partner earnings have trended skyward as associate satisfaction has tanked. With new attorneys flooding the market, where’s the incentive for those who reap staggering rewards to reconsider the human impact of their business models, especially on the youngest and most vulnerable?

Once a firm puts itself on this treadmill, it’s extremely difficult to get off, as the Darwinian logic of the market – specifically the extremely liquid and transparent market for lateral partners – all but forces firms (so they believe, anyway) to keep up with the competition at risk of  imperiling their grasp on their most desirable partners.

Indeed, just this past week I was talking with the senior partner of an AmLaw 100 firm and I asked him what he thought the greatest threat to the firm was. Understand this is a highly successful firm which has tripled in lawyer headcount (without merging) in the course of the past 15-20 years and whose reported PPP has never been higher.  His answer was swift:  “Richer firms stealing key partners by offering them $500,000 or more on top of what we can pay them.”  And no matter how loyal you may be to the firm that raised  you, as it were, and no matter how many close and collegial relationships you have with your partners, it can be awkward explaining to a spouse, or after awhile to yourself, why exactly you should leave that $500,000 on the table.

Meanwhile, of course, all of the metrics-driven pressure to send PPP ever higher into the sky has extremely caustic consequences:

  • Think it’s part of your job to spend time mentoring associates?  Think again:  That time isn’t billable and you know the vast majority of them will be out of here in short order anyway.
  • Want to spread the wealth of valuable clients by exposing them to more partners in order to “institutionalize” them more fully?  Not so fast:  If part of your compensation depends on origination or relationship credits, you’re shooting yourself in your year-end distribution – not to mention actively taking steps to deprive  yourself of a potentially portable client calling card should you be tempted to move down the street.
  • Tempted to perform other acts of good firm citizenship?  Serving in a management role, publishing and speaking, taking on visible roles in your community?  Not billable.

The question is how long we can pour acid, of our own noxiously devised recipe, across our firms without there being a price to pay.

That’s a topic for next time.


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