To Everything there is a Season

Obviously it has been a while since I have posted on this blog. Why is that? I suppose it is because I have accomplished much of what I wanted to with Law Career Blog as a solo blog. I felt I had important things to say on teaching and classroom etiquette; on law career decisions; on law firm practice; on mentoring, and more. And I have said many of them, so there you have it.

I am very pleased, though, that my posts continue to draw strong traffic month after month, year after year. What I have said here remains relevant, I think--but that does not mean I need to always rehash the same ground, all in the name of having new posts just for the sake of it.

So for now, my existing posts stand for what they are, and I am proud of them. Call me the Antiblogger, I suppose: I am blogging by not blogging.

In any event, the following is a list of posts that have generated the most interest from readers, some posts on subjects I think are particularly important, and some that are just fun. Enjoy!

Posts on Law School in General:

In a series of posts, I argued that if we want law schools to truly provide the academic and practical education that students (and employers) expect and demand, we should consider adding a fourth year to the law school curriculum. Not surprisingly, my proposal was universally condemned. Check out the comments.

See Is the Third Year of Law School a Waste of Time and Money? and Is Law School Itself a Waste of Time?

I think that too often, law students don't step back and think about law school and their future careers in a broader perspective. That's understandable given the workload in law school, but it's still unfortunate. My friend and colleague Gene Theroux visited Mississippi College School of Law once to speak to students about his storied career--he opened the first western law firm offices in China and the Soviet Union--and he had wonderful advice for them. Ostensibly the talk was about globalization, but the heart of his message was to follow your heart and practice law the right way and for the right reasons. Sometimes we need to put our cynicism aside and hear things like what he said that day.

See Theroux Part Deux

Posts on LL.M. Degrees:

This trilogy of posts is perhaps the most popular series of posts on this blog--which proves that good things really do come in threes. Lots of discussion in the comments. See The Pros and Cons of LL.M.s, LL.M. Redux and LL.M.s Part 3.

Posts on Law School Exams, Teaching, and Class Strategies

Bainbridge v. Bowman. I wrote a law review article entitled The Comparative and Absolute Advantages of Junior Law Faculty: Implications for Teaching and the Future of American Law Schools--a piece I am quite proud of. In it, I use traditional neoclassical trade theory to analyze the advantages of junior and senior law faculty and make some recommendations regarding law school teaching. Professor Stephen Bainbridge of UCLA saw it, and he absolutely hated it. This posts includes our dialogue.

How to Improve your Law School Exams Grades. This wasn't a terribly controversial post--or so I thought until I received scathing comments two years after I posted it. Some fun back and forth on that one. Maybe I should've retitled the post Bowman v. Someone Very Angry.

Law School Orientation Advice. Pretty self-explanatory. My own favorite piece of advice: Don't spill a plate of food on your law school dean at the welcome reception. I actually did that--but lucky for me, I still graduated.

Computer-Free Week and Computer-Free Week, Part 2. There is a good deal of concern in the legal academy about computer use in the classroom. Is it beneficial? Is it harmful or disruptive? So one time I asked students not to use computers for one week to see what would happen. The results were pretty interesting, and as a teacher I found the feedback via the comments very useful. Perhaps the most interesting result was that student comments revealed just how prevalent the consumer mentality is among students--namely, I paid my tuition, so I can do what I want in class.

The Dilbertic Method. I definitely like this post about parallels between Dilbert's boss and the Socratic method. If you want to see the Dilbert cartoon I am talking about, you have to click the link in the article and then enter in the cartoon's run date on the Dilbert site.

Posts on Law Firms:

Much of the attraction to, and frustration with, big law firms has to do with the money they pay their associates. So I wrote some pieces on that subject--something I have firsthand knowledge about.

See Of Law Firm Culture and Compensation Schemes, The Problem of Law Firm Salary Distributions, and Big Firm Economics 101.

In another post, I wrote about associate pay and stress levels. In light of the recent savage downturn in the employment market, this post is perhaps more relevant than ever. See Why Associates Have More Stress than Partners.

On Interview and Job Strategies and Techniques

Job Interview Do's and Don't's. The name of the post says it all.

What NOT to do as a Summer Associate. You'd be surprised what some people do. Don't be one of them.

Posts on Movies:

Finally, I have had some fun with movies on this blog, and for some reason they were always movies starring George Clooney. First, I blogged about Syriana--see Syriana Misrepresents International Lawyers.

Then I wrote a whole slew of posts on Michael Clayton--a movie that had a lot to say about what it is (and is not) like to be a lawyer. I was interviewed by the Chicago Tribune about the Michael Clayton series of posts. See the following (not too originally entitled) posts:

Clooney v. Clayton, which is my review of the movie

Clooney v. Clayton, Part 2, about hyperbole in legal dramas

Clooney v. Clayton, Part 3, on whether there is such a thing as a law firm "fixer"

Clooney v. Clayton, Part 4, on the perverse incentive/reward structure of law practice

Clooney v. Clayton, Part 5, on how law practice affects your family life

Clooney v. Clayton, Part 6, regarding legal ethics

Clooney v. Clayton--Again, regarding my Chicago Tribune Interview

* * * *

So for now, that is where things stand. I hope you enjoy reading these posts as much as I enjoyed writing them.

Greg

Revenge of the Temps

In February 2008, I wrote a post about temps entitled Attorneys Suitable for Everyday Use. It was one of the posts I was particularly pleased with at the time--and I was pleased to receive a very interesting comment on that post earlier this week. The full comment is as follows. My comments are interposed in brackets.

Begin Comment:

I quit my associate job a few years ago and have been temping ever since.

I love it and hope the pattern continues.

I work 3-4 months out of the year and then spend the rest of the time out of the US (where the local wage is much lower -- preferably by a factor of 3 or 4 times cheaper) doing what I want to do (e.g., ski instructor, language study, intensive yoga retreats in India, or hanging out on a beach enjoying life. [I had a number of friends in Europe who lived like this and loved it. Their philosophy was, "why work like a dog to retire early in your 50s and live on the beach, when you can do it right now? You might be dead before 50 for all you know.] In effect, legal temping has allowed me to do now what the average associate is planning to do when they retire at 40 or 50. [News flash: No one retires from law practice at 40. You may change careers, but you don't retire. And virtually no one retires at 50--and certainly no one I know.]

Moreover, every time I come back the temp salaries are higher and the market becomes more specialized. This is great for me, now I can make more money in a shorter period of time. [Law temping is certainly more lucrative than the teaching and table-waiting jobs my Eurofriends did in between their stints leaving in cheaper locales.] Additionally, the firms generally offer full time positions (litigation assistants) to temp attorneys who perform well. So, when I decide to go back to a career, I can get a job as a litigation assistant and then after a year or so, get an associate position at a mid-sized firm. Or, if I decide to go [and] open a law firm with a partner, temping allows one of the partners to work and fund the firm while the other one takes care of the clients. [The only downside with this approach to going back to a firm is that it is harder to get into blue-chip law firms from temping positions--although I have in fact seen it done. But if you don't want to do that to begin with, that's not really a downside, is it?]

Also, even though the salaries are lower than what an associate would make, you have to figure the associate is paying huge amount of taxes. By temping 3-4 months out of the year, I pay a lot less in taxes. [This point actually does not make much sense to me--you're still keeping more of the money, right? But I suppose the point is valid from a Laffer Curve perspective.]

I'm very happy as a temp attorney and hope the legal temping trend will continue. [I love happy endings, especially when they concern legal careers. Too often we end up griping about law careers--me included. It's nice to hear a happy story from a satisfied and fulfilled attorney. Thanks for sharing your story.]

More on the College Cost Reduction and Access Act

So after a very busy April and de facto blog holiday (blogiday?), I'm back to posting. Among other things, I will be taking a group of law students to Seoul, Korea to study this summer. That will be a lot of fun and the source of posts over the summer. But today's topic is something I have posted on in the past: law school debt and the College.

In September 2007 I blogged about the College Cost Reduction and Access Act (CCRA), which has been hailed in many quarters as "the single largest investment in higher education since the GI Bill." There's been a lot written about it; a good place to start, I suppose, is my September post, which gives a summary and links to some other very useful information online.

And then there's the recent post on the CCRA by nonprofit lawyer and blogger Fannie, who runs the blog Fannie's Room. Her comments on the CCRA are great (and more than a little frustrating. Anyone interested in the CCRA and student debt loads definitely needs to check it out.

More posts soon.

Second (Life) Opinions Revisited

In November, I posted about UK law firm Simpson Millar, which has set up shop in the online gaming world "Second Life." I just received an interesting comment on that post--and since some time has passed since then, and since it's an interesting issue, I thought it was worth pointing out again. You can link to my earlier post here.

The subtext of all this is that Simpson Millar is working multiple PR angles in creative ways. Second Life, yes, but also podcasts and blogs. SM is not the only law firm doing that, of course--but that perhaps makes the point an even stronger one. With more and more ways to raise your firm's profile and attract and serve clients, modern law firm practice is a brave new (virtual) world.

Partner Pay

In my last post, Attorneys Suitable for Everyday Use, I wrote about the growing prevalence of contract attorneys at U.S. law firms. It's my position that the use of such temp workers is part of a larger trend at major U.S. firms. That is, it appears to me that law firm employment at all levels--including equity partner, non-equity partner/of counsel, and associate positions--is becoming less financially lucrative than it has been for the past two decades.

An article in the February 5, 2008, ABA Journal backs this view up. The article reports that at the law firm of Greenberg Traurig, equity partner compensation is being frozen for the time being. In one sense, this is nothing new: as part owners of the firm, equity partners reap the rewards of huge profits when they occur, but they bear the risk of shortfalls. On the other hand, the fact that clients are increasingly conscious of legal costs means firms are increasingly constrained in terms of raising billing rates or billing their clients for more hours. The fact that mid-sized regional firms can increasingly compete with national firms in many areas of practice (e.g., corporate M&A, major projects, litigation, even international trade law) puts further downward pressure on fees. And as I said in my previous post, one way to reduce costs (and thus maintain profit margins) is to use cheaper lawyers. Enter the contract attorney.

This ABA Journal article is just one piece of evidence, and it can be dangerous to reason from the specific (Greenberg Traurig's decision) to the general (the legal market at large). But this piece of evidence does support my view that the times they are a-changing. And it is my belief that similar decisions are being made at other U.S. law firms--they're just not making headlines.

Attorneys Suitable for Everyday Use

Over at JDWired, blogger Joe Miller has a post about a contract attorney survey he recently conducted via his blog. For the uninitiated, a contract attorney is not a lawyer who practices contract law. Rather, it's someone who is hired on a temporary basis to help with a particular project. Synonyms include "document review attorney" and "temp(orary) attorney." Contract attorney work is not all that glamorous, it pays less, and there is (by definition) not a lot of job security involved. But it's work, and in a tight job market that's something. I previously blogged about contract attorney work here.

The findings of Miller's survey are interesting. Here's the gist of his post and his findings.

(1) 44% of contract attorneys (responding to the survey) were minorities. By contrast, only 16.72% of the associates and 5.01% of the partners at the firms these contract attorneys were working at were minorities. That's disturbing.

(2) Almost all said that their staffing (temp) agencies provide no access to professional development programs. Not so good for the attorneys, and potentially bad for the agencies as well.

(3) About half said they had worked as contract attorneys for more than one year after graduating from law school, and that the work was their "primary source of income."

(4) Staffing agencies typically do not provide health care. And since contract attorneys are temps, they generally won't get healthcare through the firms they work for either.

Miller concludes that "[c]ontract attorneys are an untapped resource both for improving diversity and reducing skyrocketing client costs." He then notes that "[t]he ABA’s 1992 MacCrate Report urges the legal profession to invest in all lawyers. So far, we are not seeing that."

In a sense, what Miller's survey points out--to me anyway--is that the phenomenon of the contract attorney is part of a larger restructuring of the U.S. legal job market. That is:

(1) Partnership is becoming ever harder to get, with billable targets being raised. At the same time, it is perhaps getting less lucrative. So fewer people seem to be going that route--either by choice, or because they are denied full partnership.

(2) Non-equity partnership positions (and Of Counsel positions, which are much the same thing) are becoming more attractive long-term positions. They are attractive both for people who want to avoid the equity partner rat race as well as (by default) those do not win it. But many of these positions are also getting less lucrative, as firms restructure their non-equity partner/Of Counsel contracts.

(3) Associates at big law firms make scads of money, but the positions can be hard to get in this tight job market. There's ever-increasing pressure to bill more hours, and there are reduced chances at partnership (see above), so people tend to rotate out of associate jobs after a few years.

(4) All of the above mean that contract attorneys may have a larger role to play in contemporary law firms. Contract attorneys are of course cheaper than any of the above. Firms can lower their bottom line by hiring contract attorneys to do the "lower end" legal work that needs to be done. (For insight into such work, see this post on My Attorney Blog.) And as Miller points out, not only can firms lower their own wage costs (read: increase their profits), but they also can bill these contract attorney out at lower rates--which will help keep these firms price-competitive vis à vis the competition. With an economy teetering on recession and legal work being not only outsourced but even offshored, this is no small consideration.

Michael Clayton--Again

Recently, I wrote a series of posts on the movie Michael Clayton. Six posts, to be exact. I thought the movie highlighted a number of important themes regarding the practice of law, and the posts were fun to write. They were:

Clooney v. Clayton--a review of the movie
Clooney v. Clayton, Part 2--about hyperbole in legal dramas
Clooney v. Clayton, Part 3--on whether there is such a thing as a law firm "fixer"
Clooney v. Clayton, Part 4--about the perverse incentive/reward structure of law practice
Clooney v. Clayton, Part 5--on how law practice affects your family life
Clooney v. Clayton, Part 6--regarding legal ethics

After the movie was nominated for seven academy awards recently, I was interviewed by the Chicago Tribune regarding post #3. The question posed was this: Is there such a thing as a law firm fixer? Answer: No, I don't think so. The Trib article can be linked to here.

Interestingly, an argument can be made that law firm fixers are economically justified in some cases. (For a good argument along these lines, see one of the comments made to post #3 above.) But I still think that the opportunity costs of having such a fixer are much greater than the benefits. Having another lawyer billing lots of money on big projects for years and years is far more profitable than having that person sit around waiting on calls to bail out clients.

But who knows. Maybe some day a fixer will show up at my door to tell me I am wrong. Until then, though, getting quoted in the Trib was a lot of fun.

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.

Law Firm Partnership: What's in a Name?

I received a comment to my last post that was way off point, but which had two virtues: one, the commenter admitted it was off topic; and two, it was on an interesting subject that is important for law students to understand. So I have made this question the subject of today's post.

Here was the commenter's question:

While off topic, I heard something that is law career material--Is it true that once you make partner you have to pay your own benefits?

The short answer is "Yes." Once you are a full partner at a law firm, you pay your own benefits. But short answers are boring, and the reasons behind this answer are quite interesting. So let me explain.

When you are a law firm partner, you are a part-owner of the firm. That's true regardless of how the firm is structured--be it a regular partnership or something else (limited liability partnership, limited liability company, corporation, etc.). Law firms are structured in all different ways, and in fact calling law firms "partnerships" is increasingly inaccurate, as many (including my old firms) restructure for liability purposes. So the term "partner" is often used solely for the sake of convention. In fact, some firms even forgo the term and call their partners "shareholders."

When you work at a company, who pays your benefits? The owners, that's who. So as a law firm partner, you pay your own benefits. Bear in mind, however, that you also reap the rewards of high profits when times are good. Of course, you also share the risks/losses when times are bad--and this sharing of loss is one of the reasons that many larger firms have restructured as non-partnership entities that allow for limitation of liabilities. Remember that general partnerships are pass-through entities, so that all risks pass, jointly and severally, to the partners. That means that if a true partnership law firm goes belly up, the associates get fired--but the partners can lose everything. I know people who have experienced that.

Another very interesting thing to bear in mind about law firm partnership is that a lot of people who carry the title "partner" are not really partners or owners of the firm. This is the phenomenon of the two-tier partnership. These people are held out to the public as "partners," and they do partner-level work, but they do not (yet) own a stake in the firm. Instead, they have employment contracts with the firm (unlike associates, who are "at will" employees).

Cynical readers might think that the two-tier partnership structure is a way to lengthen the track to partnership. They might also view it as a way for a firm to get all of the benefits of calling non-equity (non-owner) attorneys "partners" so they can charge their clients more, but not have to pay those lawyers full partner rates. In my opinion, those cynics are exactly right. It is no accident or coincidence that as the practice of law became much more profitable in the 1980s and 1990s, partnership became harder to get at many firms. During my years in practice I saw things change dramatically. Partnership tracks became longer, and the requirements to make full partner became more and more onerous. So onerous, in fact, that more and more non-equity partners (read: partners who are not really partners) are opting to stay that way. They are, in other words, lawyers with long-term contracts with their firms, and they do excellent work and get paid very well. But they are not partners. (Which means, of course, that they do not have to pay their own benefits.) Personally, I think that if law firms could do it, we'd be seeing "three-tier" partnership tracks.

So my advice to any law student on the job market--in any job market, big or small--is to ask, during interviews, about the firm's partnership structure. Pick your moment carefully. Perhaps you shouldn't ask during a screening interview, when you are gunning for the call-back interview at the firm's office. But if the moment seems right during the call-back, ask. Be polite and genuinely curious--after all, you want to work there, so you want to know how the place works, right? And if the answer contains descriptions like "two-tier partnership" or "non-equity partners" or the like, you'll know you are dealing with a firm with a protracted partnership track that has two steps. In many markets, that is the industry standard. Whether that is a good thing or a bad thing, however, is probably the subject of a separate post.

Potpourri

There has been so much going on with the start of the new semester that it raises a problem: what to talk about? Like studies about consumers who, faced with a plethora of choices tend to freeze and make no choice, I find myself bombarded with an embarrassment of riches in terms of blogworthy topics. So much interesting stuff to blog about, so little time.

So here are two subjects that have been on my mind this week. One is a follow-up to my last post; the other is new.

AALS Panel on Junior Faculty, January 4, 2008. In my last post I blogged about a panel I was on at the Association of American Law Schools' Annual Meeting in New York City, for which I presented an article entitled The Comparative and Absolute Advantages of Junior Law Faculty in the Classroom: Implications for Teaching and the Future of American Law Schools. As the article's name implies, it is a fusion of my interest in international trade theory and my interest in/dedication to quality teaching. The paper can be accessed online from my Social Science Research Network (SSRN) page here. (You may need to register for SSRN if you have not used it before, but registration is free.) The panel went well--no hecklers, and there was good feedback. I am looking forward to the article being published this year in the BYU Education and Law Journal.

Good Lookin' Lawyers. The ABA Journal and Legal Blog Watch have reported on a study which concludes that good-looking lawyers make more money, on average, than those considered less good looking. This sounds like one of those "master of the obvious" studies, doesn't it? In a separate study, the FDA has concluded, after five years of intensive research, that the color of most oranges is . . . wait for it . . . orange.

But on a more serious note, it is disturbing that looks should matter in a skills-based profession like the law. I do not care what my doctor looks like; I care about whether she or he is competent. (Although come to think of it, having a healthy-looking doctor is somewhat reassuring, I suppose). It's especially disturbing that looks should matter in a profession that conducts so much of its business via e-mail and telephone.

Perhaps law firm hiring committees do not have entirely the same set of interests as their clients. Maybe their hiring decisions are based in part on their own visual preferences, instead of the best interests of their clients. Or perhaps it's subconscious on their part, and all other factors being relatively equal, looks tip the scale between two similar candidates. Or maybe there is a subconscious effect on the candidates' side as well: maybe better looks breed more confidence, and thus better interview results. Or maybe all three. I am not an expert in psychology, but it does seem likely that these factors play a part.

If we accept the fact that appearance matters to us, and I think that's largely incontrovertible, perhaps the question is whether anything should be done about it. Is this something that simply "is what it is," or should law firms, and law schools, take steps to try and counter this bias in favor of people perceived to be more attractive?

And for those who may be wondering, I will not be writing an article on the comparative or absolute advantages of better-looking junior faculty in the classroom. Some areas of interdisciplinary study are better left untouched.

Interesting New Career Blog

In my last post I talked about contract attorney career options and a blog called My Attorney Blog. This post is about another interesting new blog on the subject of alternative career options for lawyers. Making the Jump is a blog run by recent law school graduate Karen Eaton, and it is devoted to the subject of law career changes. So it is definitely up my alley, and so far Eaton has written some interesting posts. It's a blog I'll be keeping my eye on, and I have added it to my blogroll.

Clooney v. Clayton, Part 6

This is my last post about the movie Michael Clayton. I've been devoting some of my recent posts to law practice-related themes and issues in the movie, and I have had a lot of fun with it. In fact, it is a movie I enjoy thinking about. I actually enjoy thinking about it more than I enjoyed watching it. For more comments in that vein, see my original review of the movie. My other posts about the movie have focused on Hollywood's distorted representation of big law firm practice (what a shock!), the mythical law firm "fixer" (lives with Bigfoot?), how law practice shapes people, and not always for the better, and how law practice can interfere with family life. Not happy subjects, I know—but an ordinary commute back and forth to a 14-hour-a-day job would not be that exciting to watch. The subject of this final movie post is the topic of legal ethics.

Specifically, is Michael Clayton's job as a "fixer" unethical?

The old Model Code of Professional Responsibility used the phrase "appearance of impropriety" in a variety of contexts. Canon 9's EC (Ethical Consideration) 9-6 provided as follows:

Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.

The newer Model Rules of Professional Conduct do not use the phrase "appearance of impropriety," but the rules' preamble does state, among other things, that "[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

There's nothing in either set of model rules about being a fixer. And there's nothing per se wrong with helping to get your firm's clients (and partners) out of trouble, is there? After all, when one of Clayton's law partners gets arrested, Clayton posts bond for him. He does not bust the guy out of jail, Rambo style.

On the other hand, the tone and tenor of the movie clearly suggest that Clayton's job is not honest, and that Clayton does not like what or who he has become. Does that make what he does unethical? If not, does that suggest that the legal ethics rules are too narrow in some way? Or are the legal ethics rules intended primarily to govern behavior, and not the subjective beliefs of law practitioners?

In any event, the movie clearly tells us what the "right thing to do is," but it does not tell us how Clayton feels about it.

The last scene of the movie is of Clayton, having just done the "right thing" (plot spoiler!), riding around in a cab. He's just turned his client over to the authorities--a client who has committed (and will continue to commit) the fairly heinous act of willfully marketing a lethal commercial product to the public. Presumably this violation of client confidentiality falls well within the scope of Model Rule 1.6(b)(1), which permits a lawyer to breach client confidentiality "to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm . . . ."

So Clayton turns the client in, and according to the movie that perhaps sets him morally "free." The last scene is a single shot that is several minutes long, during which the credits role, and the camera stays on Clooney, who does an excellent job of looking conflicted. He knows he has just done the right thing, but he is clearly having trouble feeling any emotions about it. Is that a symptom of modern law practice, at least at big firms?

Perhaps--in a highly exaggerated way. Lawyers sometimes represent clients whose positions give them pause. Is that wrong? What about advocating aggressively for those clients? Don't they deserve their day in court? But what if we do not like the outcome? Should lawyers simply not represent those clients? What is better?

I tell my classes that all too often the answer to legal questions is "it depends." That's technically true, I suppose, and I firmly believe that it is important for law students to understand that the law is generally not black and white in its application. And yet such grayness and ambiguity can lead to moral uncertainty. So that even when we clearly "do the right thing," we're not always clear how we should feel about it. Clooney's Michael Clayton embodies that in spades.

Clooney v. Clayton, Part 5

The Thanksgiving Holiday is again upon us. It is a time for family and for being thankful for what is truly important in our lives. And that subject brings to mind yet another theme from the movie Michael Clayton that I want to talk about. For those of you who have been following this blog recently, I have been writing posts about this film, with each post dedicated to one of the movie's law practice-related issues or themes. Previous posts in this series have provided a general review of the movie, as well as discussions of the movie's hyperbolic representation of big firm law practice, the myth of law firm "fixers", and the nature of law firm partners. Today, the subject is lawyers and family. And my point is this:

In this movie, Michael Clayton ignores his son.

Boy, this one hurt. Clayton is divorced (obviously--most lawyers in movies are divorced, right?), and the little time he spends with his son is spent not really paying attention to him. He drives the boy from point A to point B, and while his son talks Clayton says "Uh-huh" a lot. His son wants to discuss this really cool book he's been reading, and Clayton's response is "Uh-huh." Which does not mean that he does not love his son--he does. There is one scene in the film that drives that point poignantly home, as the two ride along in Clayton's car, and for once Clayton really tries to talk to the boy. But for the rest of the movie, the responsibilities of Clayton's job distract him at virtually all times from other, more important things like his son.

That phenomenon is not reserved for lawyers, of course, but it is an all too common phenomenon for practicing attorneys, and even a fair number of law professors too. In this respect, the movie does not engage in hyperbole at all. (See my previous point about hyperbole here.) Lack of real focus on family matters is a theme worth thinking about at any time, but perhaps especially during the Thanksgiving holiday.

Clooney v. Clayton, Part 4

This post is the fourth installment of my series discussing law practice issues raised by the movie Michael Clayton. My three previous posts in this series are located here (#1, which also reviews the movie), here (#2), and here (#3). In my prior posts I talked about the exaggerated, hyperbolic nature of the movie's plot and about how law firm "fixers" are like the Boogeyman: sort of scary, but not real. Today's topic is the terrifying subject of senior law firm partners--which, unlike the Boogeyman, are both scary and real.

Specifically, my point is that law firm partners are sometimes like "white tigers": they are fierce and elegant, but would have difficulty surviving outside their contained environment.

That observation (by a previous colleague of mine) is a wickedly accurate bit of profundity, and this movie illustrates it well. Senior partners are highly trained and very successful at what they do. But too often the distorted incentive-reward structures of law firms can result in skills sets, and even personality traits, that might not be rewarded in other, more natural settings.

Exhibit A in the movie is the junior partner, Barry Grissom, played by Michael O'Keefe. Barry is an arrogant jerk. Clayton does not like him, and Barry does not like Clayton. Sydney Pollack's senior partner Marty Bach does not like Barry either. But Barry bills and collects a lot of hours, and he successfully manages and retains paying clients, and that is ultimately what counts. Would he survive in another environment that depended more on interpersonal skills? One would hope not.

Even more intriguing is Exhibit B, Marty Bach. Pollack plays him with a great deal of ambguity, and to me that makes this character both the most realistic and most compelling one in the entire movie. Obviously he is a highly successful senior partner, with a lot of money, a lot of power, and an enviable lifestyle. That much is clear. What is less clear is how his mind works. How has he managed to achieve such success without cracking, like Tom Wilkinson's character Arthur Edens does? Marty professes to care for Michael Clayton and be a true mentor for him, but is Marty really a mentor and protector? Is Marty even in touch with his own internal tensions? Has he come to terms with them, or does he just bury them (as people often do) under a mountain of work?

One of the most disturbing scenes in the movie for me was that of Arthur Edens' wake (sorry, plot spoiler): Marty speaks of Arthur's death with sadness in one breath, and then in the next acknowledges that the firm has "caught a break" because of the death, since Arthur can't do anything more to harm the firm. How does Marty manage to balance the two poles of his thinking? Is the compassion just an act? Or can he somehow segregate compassion from business? And if the latter, then what affect does that have on his psyche?

The question I do not want to ask, let alone answer, is this: if I were in practice for 40 years at a big firm, like Marty Bach, how would I strike this balance? Could I do it at all, or at what cost?

I think it is important to ask ourselves such questions. If we make conscious choices about our career paths, then we generally can live with them. But if we do not make conscious choices, sometimes we cannot. Practicing law, with a firm or otherwise, can be a marvelous career path. But I would hate for anyone to make this career path choice--or any career path choice--without thinking about and assessing the costs and benefits involved.

Clooney v. Clayton, Part 3

This post is my third installment about law career issues raised by the movie Michael Clayton. My two previous posts in this series are located here (#1) and here (#2). See #1 for my review of the movie. Today's subject of choice is George Clooney's role as a "fixer" in his law firm. And my point about this fixer role is this:

I think the law firm "Fixer" is like the Boogeyman: disconcerting and a bit scary, but also not real.

I practiced in a big law firm for a number of years. I never, ever heard of--let alone met--a law firm "fixer." I don't think they exist. And if they do, then like the Loch Ness Monster they probably want to stay hidden.

Think about it: the math just does not add up. There certainly are people in law firms who are good at fixing problems, but that does not mean problem-fixing rises to the level of a practice area, like complex litigation or corporate mergers and acquisitions. In fact, large firms are so driven by the billable hour that lawyers who do not bill most of their time would have a hard time surviving, let along thriving. Plus, in my experience, clients are not a bad set of people, and they get in trouble no more often than a firm's own lawyers. So is a full-time "fixer" really needed? I doubt it. If a law firm needs a fixer, surely it has bigger problems, like criminal indictments against its partners and the like.

However, Clayton's job as a fixer fits well into the hyperbolic landscape of the film. (See my previous post on this point.) Clayton is trapped in his job: the firm does not have to make him partner because he is stuck--he can't readily move to another firm--but the partners do not want him to leave because of all the secrets he knows. So while it does not comport with the facts of law practice, the role of fixer works within the confines of this movie, and it helps to move the plot along.

On second thought, though, perhaps solving problems is a separate law practice specialty. Except the people who specialize in it are not called "fixers"--they are called "management." The problems they grapple with, however, are things like how to staff a case, who to promote, how to fire someone, etc. Not sexy Hollywood stuff. Unlike Clooney the Boogeyman.

Clooney v. Clayton, Part 2

Several days ago I wrote a review of the movie Michael Clayton. In that post (which can be found here), I promised to write a series of sequel posts on law practice issues raised by the movie. This is the first of those sequel posts. Today's topic is none other than cinematic hyperbole.

Specifically, the basic thesis of this post is that the movie is all about HYPERBOLE!

OK, so that statement itself is hyperbolic. But in an important sense, the movie is indeed hyperbolic and filled with archtypes. Which is to say that it is a typical movie. At its core, the film is about a guy who is in a big law firm, who feels trapped in his job, is good at it but no longer has any passion for it, has perhaps backed into his career specialty, and is desperate to get out. In my opinion, that is the story of thousands of lawyers nationwide. To be quite honest, it was, in a way, my story a few years ago.

When experienced on the personal level, this sort of feeling is incredibly compelling, and there is more than a little anguish involved. And I am sure that in virtually every screening of this film there has been at least one lawyer sitting in the audience who knew exactly how Clayton felt. I suspect that some of this blog's readers do, too. But for the rest of the audience, being paid big bucks and not being happy just isn't that compelling of a story. And to be fair, who would want to go see a melodrama in which the protagonist sits at a desk for 14 hours a day? If I wanted that sort of entertainment, I could get it for free at any big law firm.

So in Michael Clayton, the story is far sexier. Clayton is not just a lawyer. He's a "fixer" who does the firm's dirty work. And he's not a partner, so he is at the beck and call of the firm's big dogs. And he's in debt, and apparently to shady financiers. And he has a gambling problem of some sort. And he'd be a lot happier if he were a prosecutor, like he used to be, making a lot less money. And to top it all off, there's murder, and a car bombing too.

All of which is to say that Michael Clayton does not represent a typical day at the office. But the exaggerations are intended, as they usually are, to amp things up in a way that makes the story more accessible, and perhaps even more understandable, to the general public. Again, in this sense the movie is no different than many other movies and TV shows. Who wants to watch a medical drama in which the doctors mostly scrub their hands and dictate reports? What about a cop show in which firearms are never drawn? Or science fiction with no aliens?

In this sense, then, Michael Clayton is best viewed as an accurate identifier of the broad theme of entrapment that pervades US big law firm culture. Here is a guy who is good at what he does but wants out, and does not know quite how to achieve the exit. The details of his predicament, as exciting as they are, are little more than window dressing for this all too common dilemma.

Clooney v. Clayton

When I started Law Career Blog, I made a solemn pledge to myself: I would review every movie in which the law and George Clooney played major parts. I started with a review of Syriana in 2005, which is located here. (The excellent Good Night and Good Luck just missed the cut; it came out right before I started this blog.) And then I stumbled, perhaps, when I did not review The Good German or Ocean's Thirteen. (It might have something to do with not having seen them yet--but they are in my Netflix queue. So much for timeliness.)

So I suppose I should recast my solemn pledge: I will review every movie in which the law and George Clooney play major roles, and about which I have something to say. That's a promise I can keep. And Clooney's latest, Michael Clayton, certainly gives me a lot to talk about.

So much, in fact, that instead of posting a single review, I will write a series of posts about the movie. This first post will be a general review; the posts that follow will focus in greater detail on various themes or issues in the movie that I found interesting.

My Review of Michael Clayton

In Michael Clayton, Clooney plays a lawyer at a big New York law firm who specializes in being a "fixer"--a lawyer who solves messy problems for his law firm. This means that his area of practice specialization is not a particular subject area per se. Rather, it consists of the skill of resolving awkward problems in a quiet, covert (but not necessarily unlawful) fashion. While it's a living, it's not a particularly rewarding one. And then Clayton discovers (for reasons I will not go into) that the firms' biggest client has been involved in a very serious, very illegal, very deadly cover-up. Clayton is thus faced with a choice: does he help the firm, or does he reveal the client's wrongdoing? Add to this the fact that Clayton (a) is not actually a partner in the firm (he is "of counsel" to the firm, with a contract that might or might not be renewed), (b) was originally a prosecutor (i.e., used to "do the right thing," but now works for the big evil law firm), and (c) is heavily in debt because he invested, not too wisely, in a restaurant that went belly-up, and you have the makings of classic drama. Does Clayton do what he needs to do to survive, regardless of what is right? Or does he perhaps sacrifice himself in the name of justice?

If this sounds like a somewhat conventional thriller, well, that is exactly how it struck me. Which is not to say it's a bad movie. It's not. It's actually quite good in many ways. It captures some of the feel of law practice at a big firm, and it features excellent performances by Tom Wilkinson as a bipolar attorney, Tilda Swinton as an evil (and perhaps slightly incompetent) in-house lawyer, Sydney Pollack as a corner office partner (my favorite character in the film), and Michael O'Keefe as a jerk of a junior partner (my second favorite character in the film). (All bios are available through IMBD's website for the film.)

On the other hand, the whole movie seemed less than the sum of its excellent parts--very good, but not great, as if it were trying to be more than it is. Which is not uncommon for serious-minded movies. After all, when someone is making a "message" movie, will people go see it if the message is "Gee, this is something you perhaps should think about?" Or are they more likely to see it if the message/issues cut directly to the heart and soul of society? Such as, say, the rule of law and how money and power might be above the law? Look at the movie poster for Michael Clayton and you have your obvious answer: the poster trumpets that "The Truth can be Adjusted," not that "Working for a Law Firm can be Not So Fun Sometimes." So in this manner, the movie overreaches a bit. (More on this in a subsequent post.)

Yet despite this--on the third hand, I suppose--I have been thinking about the movie a lot since I saw it. And that means that it struck some chords deep within me, despite my inherent cynicism. These chords will be the subjects of my posts over the next several days. Please stay tuned.

Of Globalism and Localism

This past week was an interesting one for me--a study in contrasts. In my 1L class we had a computer-free week, which was something different (and not necessarily popular--more on that in my next post). Outside the classroom, I participated in two very different events that struck deep chords in me, and they are the subjects of this post.

The first event took place the evening of Thursday, October 11, 2007, at the Loyola University New Orleans College of Law. I spoke there as part of a panel of international law and international trade practitioners and scholars. The panel addressed the subject of international law career options. Other members of the panel included Loyola NO alumns and other practitioners, including Tom Morante of Jones Walker in Miami, as well as Professor Günther Handl of Tulane University Law School and Professor Larry Catá Backer of Penn State's Dickinson School of Law (currently visiting at Tulane). (Check out Professor Catá Backer's excellent blog, Law at the End of the Day, and his "About Me" page.) This panel, entitled Jus Gentium ("the law of nations"), was hosted by Loyola NO's newly re-formed student International Law Society (the society fell by the wayside after Hurricane Katrina).

As I listened to questions posed by the very diverse and accomplished students in the audience, and to the answers and comments from other members of the panel, I was struck by how extraordinarily complex, nuanced and rich the field of international law practice is. I know this, of course, and yet I still find myself moved by it. The feeling flashed me back to occasions in my law practice when I would be struck unexpectedly--and quite hard--by how rarified the intellectual atmosphere was where I worked.

The second event took place the very next night in Jackson, Mississippi. It was the Mississippi Center for Justice's 2007 Champions of Justice Dinner, and I was in attendance as the faculty adviser for Mississippi College School of Law's student Public Interest Law Group. The dinner drew public interest attorneys and supporters from all over Mississippi, and indeed the nation; from public interest organizations involved in Mississippi (much of it being post-Katrina relief work); from law schools (including Mississippi College School of Law and the University of Mississippi School of Law); and from law firms. The dinner was in honor of two strong contributors to public interest and social justice in Mississippi:

• Professor Deborah H. Bell of the University of Mississippi School of Law, who runs that school's well-respected Civil Legal Clinic. The clinic has been particularly active since Hurricane Katrina, and Professor Bell was honored for her many contributions to public interest law in the state.
• Hon. Rueben V. Anderson, who was the first African-American to graduate from the University of Mississippi School of Law and was Mississippi's first African-American Supreme Court justice. The program for the dinner aptly noted that while Justice Anderson "has been called a witness to history, [ ] his true role has been as a maker of history."

The dinner also featured an excellent slide show on the aftermath of Hurricane Katrina and the many legal and personal challenges faced by the storm's survivors on the coast and elsewhere.

I think the Champions of Justice Dinner was moving for everyone, but for me the contrast between the themes of this event and the Loyola NO forum could not have been starker. On Thursday, I was discussing the richness and complexity of international legal practice. On Friday I was talking about people who need help getting legal representation to obtain enough food stamps. Quite the contrast.

Obviously, the contrast between these two events is a good reminder of why it is so important for lawyers to do some public service work, no matter what they do in practice. It keeps us grounded, and it gives us better perspective on the law and our legal practices. But it also served to remind me, again, of the importance of doing things in your career that you believe in.

I believe in the richness and the potential of international law. Globalization has its perils, but it also has its enormous upsides, and we are in need of responsible, dedicated lawyers who believe in what they are doing, and why. It's global service, if you will, and if that sounds quixotic or overly idealistic, so be it.

I also believe in the importance of local service. There are many, many people who need our help as lawyers, and there are many ways to get involved. And even for overly busy people, it is quite possible that taking on even more obligations of this sort can be a way to soothe the soul, not aggravate it. A way to meaningfully give back of our talents.

So for me, the global and local activities I am involved in are the best of two very different worlds. They are a study in contrasts, but when juxtaposed as they were last week, they fit together quite well.

College Cost Reduction and Access Act, Part 3

On September 27, 2007, President Bush signed the College Cost Reduction and Access Act into law. I previously blogged about this very significant piece of legislation here and here. Several additional points come to mind about this legislation, so I am setting them out here.

First, the act does seem to address the problem of spiraling higher education costs in a fairly head-on manner. I should note that as Kiplinger's Personal Magazine reported in an article on 9/28/07, the act is being funded, at least in part, by reductions in federal subsidies to student loan companies. So that puts some of the bill sponsors' statements about this being "no-cost" legislation in better (and somewhat more accurate) perspective. (See my previous posts for more regarding that point.)

Second, while I think this act is a welcome development, it is worth pointing out that being in favor of education is sort of like being in favor of Mom and apple pie. People generally are not against education per se. So that explains much about the bill: popular subject + big problem = grand legislative solution. That's not a criticism; it's just an observation. Hopefully the impact of this new law will be positive and it will help many in need of student debt assistance. An Associated Press article that ran nationwide on 9/30/07 highlights the problem quite well.

Third, as astonishing as it may seem to people outside academia, tuition costs at most universities do not cover the cost of education. Does that help explain the rapidly rising cost of higher education in recent years? I think in large part it does. True, state colleges and universities receive state subsidies--but in many cases those subsidies have been reduced in recent years. Also, both private and public universities look to private donors for donations to build up their endowments, and those monies are used to fund school programs. And, of course, colleges and universities also obtain state and federal grant money for many of their programs.

But the fact remains that tuition increases are sometimes hard to resist. For example, what happens when a school has little endowment--or even rich endowments but still needs more capital? Neither situation is uncommon. If students are willing to pay more, and if the school is able to charge more (many states limit or cap public institution tuition rates by statute), then there is strong temptation for schools to raise tuition rates or tack on special fees. And it's a really tough choice, I think, because the students pay either way: either schools raise tuition, and students bear the brunt of it, or schools do not, and therefore cannot fund many much-needed educational programs. To give just one example, higher educational literature puts a great deal of focus on the importance of "active" learning (as opposed to passive lectures in big halls)--but active learning is often more expensive. So sometimes the choice might boil down to providing better and more costly education versus controlling costs at the expense of educational quality. Again, either way, it's the students who pay.

I fully realize, of course, that more money does not in all cases equal better education. Yet sometimes it does. And as schools offer more innovative programs like clinics and externships, focus on reducing faculty-student ratios, and invest in technology to make the classroom more interactive, someone has to foot the bill. The College Cost Reduction and Access Act hopefully means that students will foot less of it over time. But if it does not completely solve the problem--and I don't think it will--then we are back to the question of who pays. If rich donors come forth voluntarily, that's great, but there will be some institutions left out in the cold. If we decide to federally subsidize higher education that might be great too, but it also likely would be fraught with problems.

Like any good (bad?) law professor, I am doing a far better job of posing questions and framing issues than I am of offering answers. For me, at least right now, the answers are unclear. What is clear, however, is that in today's information economy, education is of paramount importance for the nation's economic well-being. Reducing the debt burden of students is an investment worth making.

PS: Education is a service, and I blogged about the rapidly rising cost of services last year in two posts on the subject of Baumol's Cost Disease (here and here). Those discussions are relevant to this topic too for those who are interested. The gist of Baumol's Cost Disease is that the cost of services often rises faster than the overall rate of inflation, because while we can automate many processes or make them more efficient--and thus hold the price (and rate of inflation) down--it's harder to automate certain services like teaching. Which from a purely self-interested point of view is not necessarily a bad thing.

College Cost Reduction and Access Act, Part 2

Last week I posted about the College Cost Reduction and Access Act (my previous post is available here). In that post I referred to a "soon-to-be-available article" by Professor Philip Schrag of the Georgetown University Law Center that would give a very good, technical analysis of the act. He has just posted his article online here. I recommend it for anyone wanting to understand this act better. Another summary of the act, by the National Association of Student Financial Administrators, is available online here.