SO, YOU WANT TO BE A LAWYER? THE QUEST FOR PROFESSIONAL STATUS IN A CHANGING LEGAL WORLD

Fordham Law Review

Volumn 78, Issue 5, 2010, Pages 2289-2314

  Sterling, Joyce S ^a   Reichman, Nancy ^a  

^a UNIVERSITY OF DENVER   (United States)

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[No Author keywords available]

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EID: 77952677683     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (152)

1. See, e.g., Symposium, Empirical Research on the Legal Profession: Insights from Theory and Practice, 22 GEO. J. LEGAL ETHICS 1249 (2009);
2. Symposium, Globalization of the Legal Profession, 14 IND. J. GLOBAL LEGAL STUD. 1 (2007);
3. Stein Center Conference: Professional Challenges to Large Firm Practices, 33 FORDHAM URB. L.J. 1 (2005);
4. Symposium, The Growth of Large Law Firms and Its Effect on the Legal Profession and Legal Education, 64 IND. L.J. 423 (1989);
5. Conference, Stanford Center on Ethics, John and Terry Levin Center for Public Service and Public Interest Law, and Stanford Law Review, The American Legal Profession: Current Controversies, Future Challenges (Mar. 14, 2008).
6. RICHARD L. ABEL, AMERICAN LAWYERS (1989);
7. MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM (1991);
8. MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994);
9. JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (rev. ed. 1994);
10. JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR (2005);
11. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993);
12. ROBERT L. NELSON ET AL., LAWYERS' IDEALS/LAWYERS' PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL PROFESSION (1992);
13. ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM (1988);
14. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000).
15. See generally William D. Henderson & Leonard Bierman, An Empirical Analysis of Lateral Lawyer Trends from 2000 to 2007: The Emerging Equilibrium for Corporate Law Firms, 22 GEO. J. LEGAL ETHICS 1395 (2009).
16. ROBERT L. NELSON, Are We There Yet? Empirical Research and the Predicted Demise of Large Law Firms: An Introductory Essay, 22 GEO. J. LEGAL ETHICS 1249, 1253-54 (2009).
17. Id. at 1253.
18. For a discussion of professional values that persist regardless of economic incentives, see Ronald J. Gilson & Robert H. Mnookin, Sharing Among the Human Capitalists: An Economic Inquiry into the Corporate Law Firm and How Partners Split Profits, 37 STAN. L. REV. 313, 376-77 (1985).
19. LEXISNEXIS, STATE OF THE LEGAL INDUSTRY SURVEY: COMPLETE SURVEY FINDINGS 10 (2009).
20. Id. at 19.
21. Id. at 6-7.
22. Id. at 13, 15.
23. Id. at 22.
24. Rachel J. Littman, Finding the Silver Lining: The Recession and the Legal Employment Market, N.Y. ST. B.A. J., Sept. 2009, at 16, 18, 20, available at http://digitalcommons.pace.edu/lawfaculty/598/.
25. Id.
26. This contradiction was obvious in Carroll Seron's study of solo and small-firm attorneys. CARROLL SERON, THE BUSINESS OF PRACTICING LAW: THE WORK LIVES OF SOLO AND SMALL-FIRM ATTORNEYS (1996). Seron's book describes how "the tension between commercialism and professionalism itself produces a point of creative reference for articulating alternative professional paths." Id. at 143. Although institutional and economic forces are key determinants of practice, Seron's work also shows how gender norms, values, and choices matter to the way the business of law unfolds. What is striking is how similar the stories have become, a point that we will elaborate in the text.
27. Roger Friedland & Robert R. Alford, Bringing Society Back In: Symbols, Practices, and Institutional Contradictions, in THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS 232, 249 (Walter W. Powell & Paul J. DiMaggio eds., 1991).
28. Id. at 255.
29. Nelson describes the divergence between the ideology of professional autonomy and the practice of client advocacy in Robert L. Nelson, Ideology, Practice, and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm, 37 STAN. L. REV. 503, 543-45 (1985). He suggests that the power of large law firms has less to do with their relationships with powerful clients and more to do with their more general role in making the systems for allocating rights and benefits legitimate.
30. Id. at 544-45.
31. See Friedland & Alford, supra note 15, at 256. Another example of an institutional conflict would be that between legal markets and families.
32. See, e.g., JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT (2000);
33. Joan C. Williams, Canaries in the Mine: Work/Family Conflict and the Law, 70 FORDHAM L. REV. 2221 (2002).
34. For a general discussion of decoupling see the classic article by John W. Meyer & Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 AM. J. Soc. 340, 357 (1977);
35. James D. Westphal & Edward J. Zajac, Decoupling Policy from Practice: The Case of Stock Repurchase Programs, 46 ADMIN. SCI. Q. 202 (2001).
36. After the JD (AJD) is the first longitudinal study tracking the careers of a large national sample of lawyers entering legal practice in the year 2000. The project has collected two waves of data as of 2010. The first wave (AJDI) was gathered after two to three years of practice, and the second wave (AJDII) was collected after seven years of practice. Currently plans are under way for a third wave of data collection to be completed in 2012. For further details about the methodology and overall findings of the study, see RONIT DINOVITZER ET AL., AM. BAR FOUND. & NALP FOUND, FOR LAW CAREER RESEARCH & EDUC, AFTER THE JD II: SECOND RESULTS FROM A NATIONAL STUDY OF LEGAL CAREERS (2009) [hereinafter DINOVITZER ET AL., AFTER THE JD II];
37. RONIT DINOVITZER ET AL., AM. BAR FOUND. & NALP FOUND, FOR LAW CAREER RESEARCH & EDUC, AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS (2004) [hereinafter DINOVITZER ET AL., AFTER THE JD I].
38. Friedland & Alford, supra note 15, at 255.
39. GALANTER & PALAY, supra note 2;
40. Marc Galanter & William Henderson, Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867 (2008);
41. Marc Galanter & Thomas M. Palay, Why the Big Get Bigger: The Promotion-to-Partner Tournament and the Growth of Large Law Firms, 76 VA. L. REV. 747 (1990);
42. David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 VA. L. REV. 1581 (1998).
43. KRONMAN, supra note 2;
44. The 2009 NLJ 250: Annual Survey of the Nation's Largest Law Firms, NAT'L L.J., Nov. 9, 2009, at 1;
45. Henderson & Bierman, supra note 3.
46. KRONMAN, supra note 2. For growth of large firms,
47. see id. at 277-78 n.23.
48. See Jeffrey Hogan, Lovells Set a Date, NAT'L L.J., Nov. 2, 2009, at 17.
49. Henderson & Bierman, supra note 3, at 1396-97;
50. see also id. at 1420-24, 1428-29.
51. Karen Sloan, The Decade Was Fun While It Lasted, NAT'L L.J., Dec. 21, 2009, at 12.
52. See the description of the origination of the Cravath System in ROBERT T. SWAINE, THE CRAVATH FIRM AND ITS PREDECESSORS: CRAVATH PARTNERS AND ASSOCIATES 1948-1964, at 657-58, 774 (SUPP. 1964).
53. For a detailed explanation of seniority-based systems such as that found at the Cravath firm, see Ronald J. Gilson & Robert H. Mnookin, Sharing Among the Human Capitalists: An Economic Inquiry into the Corporate Law Firm and How Partners Split Profits, 37 STAN. L. REV. 313, 341-43 (1985).
54. These systems are also referred to as productivity-based systems. For an explanation of these systems, see MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER 25-26 (2004);
55. Gilson and Mnookin, supra note 28, at 346.
56. Nancy J. Reichman & Joyce S. Sterling, Recasting the Brass Ring: Deconstructing and Reconstructing Workplace Opportunities for Women Lawyers, 29 CAP. U. L. REV. 923 (2002).
57. See Bryant G. Garth & Joyce Sterling, Exploring Inequality in the Corporate Law Firm Apprenticeship: Doing the Time, Finding the Love, 22 GEO. J. LEGAL ETHICS 1361 (2009).
58. See, e.g., NELSON, supra note 2, at 3, 9;
59. William D. Henderson, An Empirical Study of Single-Tier Versus Two-Tier Partnerships in the Am Law 200, 84 N.C. L. REV. 1691 (2006).
60. See, e.g., NELSON, supra note 2, at 9;
61. Nancy J. Reichman & Joyce S. Sterling, Sticky Floors, Broken Steps, and Concrete Ceilings in Legal Careers, 14 TEX. J. WOMEN & L. 27 (2004).
62. See Martha Neil, Reed Smith Sidesteps Lockstep, Creates 3 Classes of Associates, A.B.A. J. ONLINE, Oct. 27, 2009, http://www.abajournal.com/weekly/ reed-smith-sidesteps-lockstep-creates-3-classes-of-associates.
63. In addition, a number of firms recently have adopted policies requiring associates to pay back compensation to the firm if they do not make their hours requirement. See Posting of Elie Mystal to Above the Law, Tiered Payscale at Patton Boggs Leads to Associates Giving Back Money, http://abovethelaw.com/2009/ 02/tiered-payscale-at-patton-bogg.php (Feb. 23, 2009, 12:10 EST).
64. For a discussion of use of the three-year averages, see CATHLIN DONNELL, JOYCE STERLING & NANCY REICHMAN, GENDER PENALTIES: THE RESULTS OF THE CAREERS AND COMPENSATION STUDY 20 (1998).
65. See John P. Heinz, When Law Firms Fail, 43 SUFFOLK U. L. REV. 67, 68-69 (2009);
66. see also David B. Wilkins, Partner, Shmartner: EEOC v. Sidley Austin Brown & Wood, 120 HARV. L. REV. 1264 (2007).
67. See Ronit Dinovitzer, Nancy Reichman & Joyce Sterling, The Differential Valuation of Women's Work: A New Look at the Gender Gap in Lawyers' Incomes, 88 SOC:. FORCES 819, 821, 825 (2009);
68. Cynthia Fuchs Epstein et al., Glass Ceilings and Open Doors: Women's Advancement in the Legal Profession, 64 FORDHAM L. REV. 291, 390 (1995);
69. Fiona Kay & Elizabeth Gorman, Women in the Legal Profession, 4 ANN. REV. L. & SOC. SCI. 299, 305 (2008);
70. Reichman & Sterling, supra note 30, at 923;
71. Reichman & Sterling, supra note 33, at 48;
72. see also A.B.A. COMM'N ON WOMEN IN THE PROFESSION, THE UNFINISHED AGENDA: A REPORT ON THE STATUS OF WOMEN IN THE LEGAL PROFESSION (2001).
73. GALANTER & PALAY, supra note 2, at 56.
74. ERWIN O. SMIGEL, THE WALL STREET LAWYER (1964).
75. In November 2009, Covington & Burling announced that they would freeze associate salaries in offices outside of New York City. The indirect benefit for associates at Covington is that the firm had not previously reduced base salaries. Zach Lowe, Covington Freezes Associate Salaries Outside New York, LAW.COM, NOV. 11, 2009, http://www.law.com/jsp/article.jsp?id=1202435339262. On December 15, 2009, Wilmer Cutler Pickering Hale and Dorr announced they would freeze base salaries for associates at 2009 levels. The freeze is associated with a new merit-based bonus system. This appears to be a first step towards abandoning lockstep compensation for the firm.
76. Zach Lowe, Wilmer Freezes Salaries, Breaks Lockstep, AMLAW DAILY, Dec. 15, 2009, http://arnlawdaily.typepad.com/amlawdaily/2009/12/salaries.html [hereinafter Lowe, Wilmer]. The firm announced that it would transition to this system over the next two years.
77. Examples of firms cutting pay for associates include Allen Matkins, which announced the second cut in October 2009. Petra Pasternak, Allen Matkins Makes Second Cut to Pay, Lays Off Associates, LAW.COM, Oct. 27, 2009, http://www.law.com/jspAaw/careercenter/lawArticleCareerCenter.jsp?id= 1202434956006. On November 10, 2009, Reed Smith announced a twenty percent pay cut for first-year associates.
78. Brian Baxter, Reed Smith Sets First-Year Associate Salaries, Reduces Billing Rates, AMLAW DAILY, Nov. 10, 2009, http://amlawdaily.typepad.com/ amlawdaily/2009/11/reed-smith-starting-salaries-billing-cuts.html. On November 23, 2009, Seyfarth Shaw announced that first-year associate salaries would be cut by five to ten percent.
79. Zach Lowe, Seyfarth Latest To Cut First-Year Associate Pay, LAW.COM, Nov. 23, 2009, http://www.law.com/jsp/article.jsp?id=l202435728710. Finally, on December 11, 2009, Altman Weil reported that reduced associate pay was likely to be a permanent adjustment to the legal market.
80. Julie Triedman, Associate Pay Cuts Here To Stay, Say Firms, Analysts, AMLAW DAILY, Dec. 10, 2009, http://amlawdaily.typepad.com/amlawdaily/2009/12/ associate-compensation-cuts-not-temporary-say-firms-arialysts.html. It was announced that nineteen AmLaw200 firms had cut entry-level pay since February 2009.
81. Id.
82. JD Journal reported that more and more law firms are ending seniority-based pay for associates and adopting instead "merit-based" systems, similar to industries outside of the legal profession. Firms adopting these new plans include Orrick, Herrington & Sutcliffe, Sherman & Sterling, Wolf Block, Bingham McCutcheon, Reed Smith, and Howrey. JD Journal, More Firms Adopting Merit-Based Pay for Associates, http://www.jdjournal.com/ 2009/03/16/more-firms-adopting-merit-based-pay-for-associates (Mar. 16, 2009).
83. See Karen Sloan, Where Have All the Flowers Gone?, NAT'L L.J., Dec. 21, 2009, at 12. Sloan reported that the first layoffs came in January 2008 when Cadwalader, Wickersham & Taft laid off thirty-five lawyers.
84. Id. By December 2009, the 250 largest law firms had laid off 5259 attorneys.
85. Id.
86. Debra Cassens Weiss, Law Firm Layoffs Hit 10K Mark: Thursdays Most Often Bring Bad News, A.B.A. J. ONLINE, Apr. 13, 2009, http://abajoumal.com/news/law- firm-layoffs-hit-10k-mark-thursdays-most-often-bring-bad-news/.
87. Interview 6, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
88. See David Wilkins, supra note 36.
89. Also, for a recent update on Sidley Austin as well as other firms that have fired or de-equitized partners, see Jeff Jeffrey, Goodbye to Real Partners, NAT'L L.J., Dec. 21, 2009, at 16.
90. See Lowe, Wilmer, supra note 40 (reporting that the new compensation system at Wilmer Cutler Pickering Hale and Dorr will encourage different career paths for lawyers and pay them accordingly).
91. See Karen Sloan, The Decade Was Fun While It Lasted, NAT'L L.J., Dec. 21, 2009, at 12.
92. See ROBERT DENNEY ASSOCS., WHAT'S HOT AND WHAT'S NOT IN THE LEGAL PROFESSION 1 (2009).
93. Id. at 4.
94. This description has been adopted directly from After the JD II: Second Results of a National Study of Legal Careers. DINOVrrzER ET AL., AFTER THE JD II, supra note 20, at 12.
95. See DINOVTIZER ET AL., AFTER THE JD I, supra note 20.
96. See DINOVITZER ET AL., AFTER THE JD II, supra note 20, at 45.
97. See id. at 71.
98. See id. at 62.
99. This summary of findings is taken from DINOVITZER ET AL., AFTER THE JD II, supra note 20, at 15.
100. 105 lawyers were interviewed in depth in the first wave of AJD. Missing from the current analysis of AJD lawyers who work at large law firms are an additional forty-three lawyers who practiced in large firms in AJDI, including some lawyers at large New York firms.
101. Interview 15, AJDI, in L.A., Cal. (May 2003) (on file with author).
102. Id.
103. Interview 15, AJDII, in L.A., Cal. (July 2009) (on file with author).
104. Id.
105. Interview 35, AJDI, in Chi., III. (June 2003) (on file with author).
106. Interview 35, AJDI, in Chi., III. (June 2003) (on file with author).
107. Interview 15, AJDI, in L.A., Cal. (May 2003) (on file with author).
108. Interview 4, AJDI, in Wash., D.C. (Jan. 2005) (on file with author). Any use of names are pseudonyms adopted to disguise identity of respondents.
109. Interview 4, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
110. All of these concepts are problematic and contested; nevertheless, they remain ideals that distinguish professions from other kinds of jobs.
111. See, e.g., Nelson, supra note 17, at 504-05;
112. see also Rayman L. Solomon, Five Crises or One: The Concept of Legal Professionalism, 1925-1960, in LAWYERS' IDEALS/LAWYERS' PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL PROFESSION, 144, 144-73 (Robert L. Nelson, David M. Trubek & Rayman L. Solomon eds., 1992).
113. As a professor teaching Professional Responsibility, one of the authors of this paper has found that the myth of neutrality of representation is still very much part of the ideals adopted by law students.
114. Interview 9, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
115. The assumed neutrality of the lawyer has been a concern for lawyers since the McCarthy era when lawyers needed to create a separation between the anticommunist hysteria of the public and their ability to function as lawyers. Solomon, supra note 68, at 162-66.
116. Interview 39, AJDII, in Chi., III. (Aug. 2009) (on file with author).
117. Interview 23, AJDII, in S.F. Bay Area, Cal. (June 2009) (on file with author).
118. Garth & Sterling, supra note 31, at 1394.
119. Interview 26, AJDI, in S.F. Bay Area, Cal. (Aug. 2003) (on file with author).
120. Interview 26, AJDII, in S.F. Bay Area, Cal. (June 2009) (on file with author).
121. Interview 6, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
122. Id.
123. Interview 13, AJDI, in L.A., Cal. (May 2003) (on file with author).
124. Interview 13, AJDII, in L.A., Cal. (June 2009) (on file with author).
125. Interview 35, AJDI, in Chi., III. (June 2003) (on file with author).
126. Id.
127. Id.
128. Here we argue that workplace socialization can be an important source of cultural capital that enhances one's professional status. It may not substitute for the manners and tastes that accompany early elite experience. See generally Ronit Dinovitzer & Bryant G. Garth, Lawyer Satisfaction in the Process of Structuring Legal Careers, 41 LAW & Soc'Y REV. 1 (2008). Relying on AJDI data, Ronit Dinovitzer and Bryant Garth examine job satisfaction as a mechanism through which social and professional hierarchies are produced and reproduced. The article finds that lawyers' social background (including law school rank) decreases career satisfaction and increases the odds of aspiring to change jobs. Those lawyers coming from more prestigious social backgrounds are less satisfied with their first jobs and more likely to indicate that they intend to change employment settings. Still, learning how to be a lawyer by watching the habits and manners of more senior lawyers is an important component of professional training.
129. Interview 11, AJDI, in L.A., Cal. (May 2003) (on file with author).
130. Interview 11, AJDII, in L.A., Cal. (Mar. 2009) (on file with author).
131. Interview 29, AJDI, in S.F. Bay Area, Cal. (Aug. 2003) (on file with author).
132. Id.
133. Interview 6, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
134. Id.
135. Id.
136. Id.
137. Interview 32, AJDII, in Dallas, Tex. (Aug. 2009) (on file with author).
138. Interview 2, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
139. Lawyers in her firm typically move to "of counsel" on the road to nonequity and eventually equity partner (a tripartite system of partnership). When promoted to counsel, lawyers are offered a two-year contract, renewable only if the firm still needs your work.
140. This rationale of letting go of new associates is consistent with the December 23, 2009, online story in the ABA Journal, indicating that firms are foregoing bonuses to first years and keeping the bonuses (though reduced in amount) for the third-year associates, who were considered to be worth keeping, even in the current fiscal crisis. See Debra Cassens Weiss, First-Year Associates Bear the Brunt of Lower Bonuses: Some See Cuts of Seventy-One Percent, A.B.A. J. ONLINE, Dec. 21, 2009, http://www.abajournal.com/news/ article/first-year-associates-bear-the-brunt-of-lower-bonuses-some-see-cuts-of- 71.
141. Interview 11, AJDII, in L.A., Cal. (Mar. 2009) (on file with author).
142. Interview 3, AJDII, in Wash., D.C. (Mar. 2009) (on file with author).
143. Id.
144. In a different project, we describe how the quest for control over time (a professional value) is often conflated with work-life balance. Few lawyers we interviewed expected to have balance. What they were looking for was ways to assert control over how their time was spent.
145. Interview 20, AJDII, in S.F. Bay Area, Cal. (June 2009) (on file with author);
146. Interview 20, AJDI, in S.F. Bay Area, Cal. (Aug. 2003) (on file with author).
147. Interview 39, AJDII, in Chi., III. (Aug. 2009) (on file with author).
148. Interview 23, AJDII, in S.F. Bay Area, Cal. (June 2009) (on file with author).
149. Id.
150. See SERON, supra note 14.
151. See, for example, the November 20, 2009, announcement that Hogan Lovells will adopt a firm structure that resembles that of the Big Four accounting firms.
152. See Alex Novaree & Sofia Lind, Lovells To Move Farther Away from Lockstep Under Planned Merger with Hogan Hartson, LAW.COM, NOV. 20, 2009, http://www.law.com/jsp/article.jsp?id=1202435684853.