Sinking and Swimming

There is a good deal of discussion these days about the “death of mentoring” in law practice. I have blogged about this subject previously (see here and here). Discussions about mentoring generally assume that while there used to be mentoring, there there’s not much anymore—with the effect being that associates are left to sink or swim on their own in practice.

That would be bad enough. But a recent article in the NY Lawyer points out that not only are associates often thrown into the deep end of the law practice pool, without any real mentoring or assistance, but that sometimes mentors actively try to try to sink associate careers. (Note: You need to register in order to view NY Lawyer articles, but registration is free.)

This sort of sacrificial phenomenon is not new. It is human nature for people to take credit and pass blame. To analogize to economic wage theory, one might say that in the employment context, credit is sticky downward (in that it tends not to flow down the chain of command from supervisors to underlings), while blame is sticky upward.

So if all of this is nothing new, why was this article written, and why does it resonate with readers? A cynical answer is that news topics, like history, tend to repeat. And in fact the NY Lawyer article itself is a reprint from Texas Lawyer and is also reprinted in the ABA Journal.) A more satisfactory explain, however, is that the economics of modern law firms—especially large ones—tend to mask this age-old problem. Perhaps we implicitly assume that since associates can make partners a lot of money, they are less likely to be sabotaged. And maybe that assumption is flawed. So this is a topic worth exploring more.

Law Firm Economics 101

I have blogged about the economics of modern law firms before (see for example here, here and here). There is a lot of money to be made in the modern practice of law, at least at large law firms. At the right firm, in the right market, in the right practice area, lawyers can become very, very rich by working very, very hard. And we more or less have bought into the notion of the “sweat shop” law firm. (By “bought in” I certainly do not mean “approve of”; rather, I mean that this conception of the large law firm is generally accepted as a standard one by many observers.)

The idea is that there is a pyramid structure to most law firms, with multiple associates for each partner. En route to partnership many associates will be weeded out, either through self-selection or by the firm, so that at the top of the pyramid we generally find a small number of partners who reap the benefits of a large number of toiling associates. If you do the math, it becomes apparent that partners at the top of the heap can do quite well compensation-wise. And with a steady stream of newly-minted law school graduates coming into practice, new lawyers can be worked very hard until they burn out, and then be replaced. This is neither a pretty nor happy model, but from the perspective of senior partners it works well financially.

The Phenomenon of "De-Mentoring"

So we can complain about this system, and we can bemoan the lack of mentoring at law firms. But why on earth would a law firm partner actively work to skewer a junior associate? Why would the partner steal the junior associate’s business, or pass blame, or take credit for the junior associate’s work? Don't partners make more money if associates are left alone to work hard, instead of actively impeded? Doesn’t it behoove partners to let some of the associates win the game? After all, if there is no chance of upward mobility, there is little incentive for associates to buy into the system.

There are many answers to these questions, and the answers will vary somewhat from firm to firm. But I have two general observation about such “de-mentoring.”

First, law firm partnership is not Shangri-La(w). The perception of some associates is that once you achieve partnership, your new address is “123 Easy Street.” Not so. One former colleague of mine described making partner as a twelve year-long pie-eating contest in which the prize for winning is a lifetime supply of pie. That’s a very apt description. Partners in big law firms work very, very hard, and they typically are expected to bill and bring in a lot of new business even after making partner. Those who do not are at the very least politically marginalized in their firms, and at most are forced to retire or resign.

So what if you are a senior partner who cannot keep up with the workload, for whatever reason? You do whatever is needed. The law firm may benefit more from rewarding hardy survivalist associates—but you benefit from surviving yourself, even at the expense of the firm and some associates. And since modern law firms, with their revolving door of junior associates, tend to discourage long-term working relationships and encourage (by default) an “us versus them” mentality amongst colleagues, too often there is little to prevent such behavior.

Second, how do you winnow the wheat from the chaff when there is no chaff? Large, blue chip firms attract an enormous number of highly talented and ambitious young associates. A process of natural selection, via survival of the fittest, is not a good way to weed out associates when all of them are fit. (Figuratively fit, of course—who has time to go to the gym when practicing law?)

So while there are surely instances of overt backstabbing or betrayal (see above), I think a more common event is the use of a minor mistake—or even ordinary performance (instead of extraordinary performance)—as a pretext for distinguishing between two equally qualified and deserving associates who are working pretty much equally as hard. In some cases, partners might even create artificial distinctions between associates—such as by talking down one associate’s work—in order to justify such an artificial choice.

These factors go to show that the interests of partners and associates often diverge, and that this can have an effect in the mentoring context. In fact, the labor-versus-management dynamic and the endless hours worked by associates suggest very strongly that the Marxist critique of capitalism is quite relevant in this context. (For excellent discussions of this very topic, see posts by David Luban at Balkanization and by Paul Secunda at Workplace Prof Blog.) For now though, it is simply important to bear in mind that when you are a junior associate, the worst your mentor can do is not just to ignore you. Rather, the worst is that your mentor might actively de-mentor you.