The Why of Big Law
The pandemic is a crisis that breaks us out of routines and causes a reexamination of things we take for granted. Every industry is challenged and in the service sector the challenge is multiplied. While constant electronic communication is an accepted foundation of all modern work, for most of us, the real moments, those we perceive as being noteworthy, almost always involve face to face contact. Being in the meeting, in the boardroom, in court, is a signifier outwardly and inwardly. The stories we replay for ourselves and others always involve our in-person presence. Faced with that absence and the changing nature of our roles, we feel compelled to question not just how we do things, but why. The pandemic tests our values and forces us to confront them. Why do I do this again?
The importance of “why” is a theme that runs through the work of the business author Simon Sinek. Within an industry, everyone has a generally common “what” and a “how” he offers, but the “why” we do things is what sets apart those who are truly successful. So why?
The “why” question for the practice of law is for many an easy one, it is an opportunity to live out values that are fundamental to the organization of society, notions of justice, fairness and equal opportunity. It is also, at its core, a commitment to service. A lawyer without a client is a politician. A lawyer with a client is someone committed to the well being and success of another. So “why” is not a challenge and the answers are all imbued with the type of things we hope might mark our lives.
For about 125,000 of the nation’s 1.3 million lawyers, the question they are forced to ask themselves, however, is something more nuanced. These lawyers are those who work within the nation’s largest law firms, the denizens of “Big Law” as it were. It is a selective and remarkably remunerative area of the law, but it is far removed from the day to day reality of most lawyers. The law as practiced in these firms is more a business than a profession.
Big Law is focused on the representation of institutional clients, those who are engaged in the largest transactions and cases in the country implicating very large sums of money or recurring with a constancy necessary to their business. These matters support hourly fees now well into the $1000 per hour plus range in the larger markets. The work, especially at the junior levels, can feel very far removed from the client and the matter at hand. The “matters at hand” in turn are often the type of matters important to a client’s business, but rarely carrying with them any type of societal significance beyond the macro level importance of facilitating the operation of the marketplace in accordance with the legal guardrails that promote the preservation of the status quo.
The law firms within this cohort seem both to accept and encourage their classification based on size and revenue. Handily, a trade publication, The American Lawyer, provides an annual ranking of firms by revenue and law firms in turn refer to themselves as being within the “AmLaw 100” or “AmLaw 200.” The firms are further classified by various other metrics, but none so coveted as “profits per partner.” Intuitively, many believe then that the appropriate goal of law firm management is to grow “profits per partner.” This is the Big Law equivalent of the “shareholder value” paradigm. The goal of the law firm is to maximize the return for its equity holders. There are, of course, glossed over all of this, tributes to pro bono work, professionalism and community service. These are all real and meaningful commitments, but they are not in anyone’s view the driver of the business of running a large law firm.
Why does your law firm exist — to maximize profit for its partners — is both an accepted, if unspoken, norm and one that makes sense. It is not enough.
The focus on profits per partner within law firms and the entire practice of measuring the quality of a law firm by how much money it makes is a product of the last 30 years or so. It arose in response to the closed lockstep compensation systems of many old-line firms that took the labors of younger partners and distributed them to others based on seniority. The younger partners left and found a marketplace more than willing to compensate them based on their ability to generate work for their new firm. In this way, the marketplace for lawyers moving laterally between firms became one that is defined by the portable “book” that a lawyer can bring with her or him to a new firm. Law firms bid for this talent, the talent looks for the places that can generate the greatest reward for their work, the places with the greatest profit per partner.
Part of the response to this trend has been an effort by some firms to disconnect “origination” from individuals and connect it to the firm as whole, discouraging lateral movement and restricting the knowledge about who is responsible for the work, and how they are rewarded, to a very small circle. This forced infantilization of partners yields firms that operate within a “black box” system in which the partners in the enterprise don’t know what each other make. Partners who originate work deserve to be paid more for doing so. It is their effort that sustains the business of the law firm. Restricting information from partners or refusing to acknowledge the essential and more important role of those lawyers who originate the work are not cures, they are poor attempts to treat symptoms.
The assumption that lawyers only want to be at places that maximize their income misunderstands, however, the things that motivate most lawyers. If the current moment teaches us anything, it is that there is nothing more ordinary or unsatisfying than the maximization of profit alone as a reason for being. Lawyers at the top of their game are human enough, but they are lawyers for a reason and it is not to make lots of money.
The primary effort of all lawyers, on a daily basis, is to serve others. It is that service, that self-abnegation, that is their true purpose. Serving others is not something that is marked or identifiable by how much money the partners in the law firm make. Large law firms as professional collectives dedicated to the service of others have unlimited potential. Law firms committed to the constant growth of profits per partner and focused on their “AmLaw” placement are in a race with no end. It is a closed circle with no winners.
It is beyond time that law firms within Big Law rediscover a purpose important enough to honor the immense talent of the women and men who work within them by abandoning the American Lawyer metrics and finding their way back to the elemental concepts that characterize those who pursue the profession. This turn does not prevent firms from fairly, openly and transparently compensating their partners or recognizing the contributions of those who originate work, but it does demand that they cease identifying themselves by how much money they make. That is no way for any lawyer to live.
