As lawyers we are in many ways a privileged group. We are well-educated,
our work is intellectually challenging, we have the opportunity to help
people solve problems which are important to them and to our society,
and we earn or have the potential to earn comfortable incomes. Nonetheless,
there is growing evidence that a significant cross-section of lawyers
are dissatisfied with the quality of their professional lives. Even among
those lawyers who feel the greatest sense of professional fulfillment,
I have not encountered anyone who is not concerned about some of the alarming
trends in our profession. To my mind, this issue of professional fulfillment
is the most serious problem facing our profession today, and a legitimate
topic for dialogue among lawyers in every possible context.
A primary objective of the Boston Bar Association is to make the
legal profession the very best that it can be and to help each of us individually
be the best and most professionally fulfilled lawyers that we can be.
The critically important role that lawyers play in our society demands
that we meet problems facing the legal profession head on; to ignore such
problems, to pretend that they do not exist, or to say that the problems
defy solution is to shirk our responsibility to ourselves, to our profession
and to our society.
It was with a positive and optimistic spirit that I convened a Task
Force on Professional Fulfillment last September. Buttressing my optimism
was the know-ledge that we as lawyers are trained problem-solvers capable
of applying our skills for the betterment of our profession, and that
one of the country's most capable and caring lawyers, Jack Curtin, agreed
to chair the Task Force.
The Task Force included lawyers in private practice, government service,
legal services, academia, in-house counsel, an attorney who left the practice
of law and a law firm management consultant. My charge to the Task Force
was to identify the root causes of dissatisfaction in our profession and
to propose ways in which lawyers can reduce or mitigate challenges to
their professional fulfillment. The Task Force was also asked to be especially
sensitive to issues affecting women attorneys and attorneys of color.
Having participated in the work of the Task Force, and having read
its findings and recommendations, I am pleased to report that my initial
optimism was well-founded. The members of the Task Force expended countless
hours in conceptualizing an approach, in arranging and conducting focus
group sessions, in analyzing, debating and determining common themes and
in writing the Task Force Report. The unstinting and enthusiastic participation
of literally every member of the Task Force was an inspiration to me as
we worked together in an effort to achieve an in-depth understanding of
the problems affecting our profession and its sub-parts. The members of
the Task Force demonstrated their extraordinary insight, experience, and
creativity in crafting constructive solutions and mitigation suggestions.
The work product reflected in this report goes beyond the work of
the Task Force members. It reflects the time generously donated by over
one hundred volunteers who participated in the focus groups which formed
a key ingredient [iv] of the research effort.
Throughout the year, the Task Force relied heavily on and benefitted enormously
from the expertise of its reporter, Frania Monarski. Frania not only helped
organize and conduct most of the focus groups, but she was also the primary
organizer and writer of this Report of the Task Force. All of us enormously
appreciate and value her contribution. A special thanks to David Hall,
Dean of Northeastern University School of Law, and the faculty and students
of the Law, Culture and Differences class for their assistance with research
for the Task Force, their participation in the focus groups and their
report on Lawyer Civility and Fulfillment. Finally, the always valuable
advice and participation of the BBA's Executive Director, Frank Moran,
the important staff role of Rob Vitale, the editing assistance of our
Director of Communications, Bonnie Sashin and the graphic designing of
Judi Bogart were all indispensable.
A truly worthwhile project is typically more than just the sum of
its parts. Throughout the months that the Task Force was completing its
work, lawyers here in Boston and in other parts of the United States expressed
their appreciation and even relief that a bar association could deal actively
and openly with such complex and sensitive issues. To have made it respectable
to talk publicly about the often sensitive issue of how lawyers can improve
the quality of their professional lives underscores the importance of
what the Task Force has accomplished.
I would urge you to read this Report carefully, share
it with your colleagues, and use it as a catalyst to facilitate meaningful
discussion on how to best achieve positive change. Do not fall into the
trap of dismissing certain of the findings and recommendations without
engaging in a dialogue with relevant others. Clearly, however, not all
of the findings and recommendations will fit every situation. This Report
will be helpful to the extent that you use it as a guide and challenge
for exploring what you might do to improve your own sense of professional
fulfillment and that of other lawyers with whom you relate. Most importantly,
it is essential that you view this report as a beginning and not as a
completed project. The impact of this Report will be determined in largest
part by the communication and actions that follow.
Joel M. Reck
President, Boston Bar Association
August 1997
PREFACE [v]
Institutions have been defined as the lengthened shadow of a single
individual. This Task Force Report began as the project of Joel Reck,
the President of the Boston Bar Association. He believes that the issue
of professional fulfillment is the most serious problem facing our profession
today. He decided to make issues of professional fulfillment a principal
focus of his Presidency.
The resources of the Boston Bar Association became available for
the project. Frank Moran, Executive Director of the Association, became
a member of the Task Force and added his advice and perspective to our
deliberations. He assigned Robert Vitale to assist the Task Force.
A crucial addition to the Task Force was our reporter, Frania Monarski.
She helped organize many of the focus groups and worked diligently to
memorialize the changing nature of our work in progress. Without her
drafting assistance, many of the subcommittee reports, and the Task
Force Report could not have been completed in a timely fashion. From
time to time other BBA personnel helped.
Many Boston lawyers gave generously and enthusiastically of their
time. The 17 members of the Task Force are listed herein. They included
partners and associates in large firms, small and medium sized firms,
legal services lawyers, those in-house and in academia. Other Boston
lawyers participated by interview or in focus groups.
The principal initial problem was to organize ourselves effectively
to obtain meaningful but not exhaustive data.
The subcommittees were divided according to common interests in
private, public and academic sectors. As a result, they were able to
obtain meaningful data in a reasonable period of time.
The subcommittees made extensive use of focus groups, as well as
individual interviews to obtain representative data. Reports of the
results of subcommittee investigations were circulated to the full Task
Force and were comprehensively discussed. Detailed minutes have been
maintained. Suggestions for further research were often made.
The Task Force had discussed at the outset whether a separate subcommittee
dealing with issues of women attorneys and attorneys of color would
be necessary. After considerable debate, a tentative decision was made
that those issues would be considered by all of the subcommittees. As
our investigations progressed, however, it became clear that the issues
of women attorneys and attorneys of color required a separate subcommittee.
That subcommittee was created and its findings are part of the report
of the Task Force.
The Task Force decided that it would not simply be a fact-finding
body. Each subcommittee was asked to make specific recommendations as
to possible actions to address causes of dissatisfaction. They have
done so. The reports of the subcommittees will be of particular interest
to those similarly situated, but every report is of significance to
those who are concerned about the general health of the bar.
A few preliminary observations may be helpful to understanding
the report. [vi]
There was a general recognition of the dramatic changes in our
profession in recent years. Part of our task was to investigate the
consequences of those changes. Despite change and its consequence, the
Task Force concluded that professional fulfillment remains first and
foremost the responsibility of each individual attorney.
Considerable data demonstrated that recent realities of the practice
of law differed substantially from initial expectations upon entry to
the practice. The report recommends a closing of that gap.
A major correlation with professional satisfaction was the lawyers'
perceived ability to control their own time. Interestingly enough, perhaps
for this reason, solo and small firm practitioners seem professionally
satisfied, with certain exceptions set forth in the subcommittee report.
A fairly common theme was a concern at the growing lack of civility
and professionalism at the bar. The concern mirrors a national theme.
This report does not elaborate at length on such issues and possible
recommendations.
One of the more interesting findings of the subcommittees was that
younger lawyers were interested in more mentoring and senior lawyers
were interested in providing mentoring. We recommend combining those
interests.
These observations are merely intended to whet the appetite of
the reader for the full report.
The details of the findings and recommendations need to be carefully
examined. They are not offered as the definitive solutions to the problem.
They are offered as a basis for serious dialogue, in the hope that some
progress might be made towards greater professional satisfaction. The
problem is real. Ignoring this report will allow the problem to fester.
Let's talk.
I thank all involved for the extraordinary dedication they have
shown to this project. The bar owes them a great debt.
John J. Curtin, Jr.
Chair
August 1997
EXECUTIVE SUMMARY [vii]
The following is (1) a listing of the most common areas of concern
which emerged from Task Force discussions, and (2) summaries of the
recommendations found in each of the Subcommittee reports in this Task
Force Report, which are summarized here for ease of reference. The reader
is encouraged to refer to the Introduction and the specific recommendations
and analysis for the most accurate description of the issues.
BARRIERS TO PROFESSIONAL FULFILLMENT
- The difficult balance among home life, work life, and community
service.
- The increasing measurement of and pressures for greater productivity.
- The increasing commercialization and commoditization of the practice
of law.
- The increasing trend towards clients retaining, and lawyers functioning
as, mere technicians rather than counselors providing advice, guidance
and counsel.
- The increasing incivility among attorneys, especially litigators.
- A growing sense of isolation and alienation expressed by many attorneys,
regardless of the nature of the workplace.
- The lack of effective training and mentoring for attorneys.
- The debt burden incurred by law students, which limits career choices
and the pool of applicants who can afford law school. This burden
has a disproportionately heightened effect on economically disadvantaged
students.
- The financial and technical difficulties to access the tools of
the legal trade felt mostly by sole practitioners, public service
attorneys and solo in-house counsel who generally earn less income.
- The lack of training for all lawyers on how to manage the practice
of law in both the public and private sectors.
- The increasingly negative image of attorneys expressed by the public
and exacerbated by the media and partisan interests.
Large Law Firm Partners [viii]
- Law schools, law firms and the BBA should provide more "real life"
training to prospective practitioners to improve their understanding
of realistic career choices, to help make the transition to practicing
law, and to encourage greater opportunities for collegiality.
- Bar associations, the judiciary, and law firms should be more active
in encouraging civility and professionalism among attorneys.
- Large law firms should confront the tension between increasing revenues
and attorneys "having a life", and attempt to encourage partners to
manage expectations.
- Large law firms should consider accelerating efforts to shift revenue
production away from a dependency on the billable hour.
- Large law firms should encourage shared responsibility not only
for maintaining revenue production but also for community service
thereby giving more partners opportunities to re-energize themselves.
Large Law Firm - Associates
- Law firms should attempt to provide associates an honest assessment
of partnership potential at each annual evaluation and be pro-active
in helping the associate address weaknesses.
- Law firms should consider examining the traditional firm partnership
structure to determine its efficacy in today's economy.
- Law firms should consider providing associates on-the-job training
in business development and marketing, hiring a marketing director
and providing a modest expense account to help further these skills.
- Law firms should consider encouraging partners to train junior associates
in business generation, to give compensation credit to partners for
this service, and to actively involve associates in marketing efforts,
while giving them appropriate credit toward billable hour standards.
- Law firms should consider whether they are adequately recognizing
excellent client service skills in addition to business generation
skills when evaluating an associate's prospect for partnership.
- Law firms should consider permitting associates (particularly working
parents) to work on a part-time basis without being taken "off-track",
and instead adjust compensation and extend pro-rata the length of
time to become a partner.
- Law firms should attempt to insure that associates have appropriate
work experience to gain the spectrum of skills appropriate to their
level of experience and to provide consistent feedback.
- Law firms should attempt to enhance the management skills of partners
as well as those of associates and consider an upward-evaluation in
which associates evaluate partners' management skills.
- [ix] Law firms should consider establishing
meaningful associate liaison groups in include senior firm decisionmakers.
Sole Practitioners and Small Firms
- Sole practitioners, with the support of the BBA, are encouraged
to overcome isolation and to increase or share their knowledge by
participating in the BBA's mentoring program and by establishing informal
networking groups for advice, support and guidance, including online
discussions through the BBA Website.
- The judiciary is encouraged to take an active role in the management
of litigation and to establish an appropriate relationship between
the magnitude of the dispute and the cost to resolve it.
- The BBA should encourage open discussion on the growing costs and
affordability of legal services.
- The BBA is encouraged to examine its dues structure for affordability
for attorneys whose years of practice are not reflective of their
incomes, to study the malpractice insurance rate structure, and to
seek new ways to publicize services, products and discounts.
- The BBA is encouraged to communicate to the public the utility and
value of lawyers and their relationship to the legal system and important
societal values.
In-House Counsel
- Corporate management is encouraged to recognize the importance of
professional development of legal staff, to encourage participation
in bar associations and participation in pro bono activities.
- The BBA should modify its programs to be more accessible and meaningful
to in-house counsel, such as pro bono programs, and provide resources
for brief summaries of specific areas of Massachusetts law.
- The BBA should facilitate small roundtable discussions among in-house
counsel having similar interests and challenges.
Public Service
- Public employers are encouraged to budget for minimum law practice
facilities, support staff, supplies and research capability such as
those available to private sector attorneys.
- Public employers should recognize public sector lawyers' participation
and representation within professional associations as an important
and necessary role to counsel the public client.
- The BBA should take an active role to bolster recognition of public
sector attorneys, involve them in CLE programs, and produce CLE topics
on managing the public law office.
Academia [x]
- Law schools should consider implementing loan forgiveness and loan
protection plans to help students manage law school debt burden.
- Concerning faculty, law schools are encouraged to clearly articulate
tenure requirements, support candid communication among tenured and
non-tenured members, support adjunct and contract faculty members
through job security and fair salary, and hire more women and attorneys
of color.
- Law schools are encouraged to examine curriculum to meet the challenges
of teaching in a rapidly changing profession, and teach professionalism
and civility in all classes.
Senior Lawyers
- Law firms should evaluate retirement plans, or institute one if
nonexistent, to ensure they serve both the needs of firms and address
concerns of senior lawyers.
- Attorneys should begin to focus on career planning and retirement
issues when they reach age 50, and that bar associations facilitate
career planning programs.
Law Students and Recent Graduates
- The BBA should encourage a national organization, such as the American
Bar Association, to conduct a comprehensive study of the student debt
issue. (This is a joint recommendation with the Public Service and
Academia Subcommittee.)
- Law firms, corporate legal departments and public sector entities
should examine and assess their training and mentoring opportunities
for law students and new lawyers.
- The BBA is encouraged to revitalize its mentoring program to address
needs of law students, new lawyers and solo and small firm practitioners
and to explore methods of using senior attorneys. (This is a joint
recommendation with the Senior Lawyers and Solo and Small Firm Practitioners
Subcommittees.)
Women Attorneys and Attorneys of Color
- Attorneys individually are encouraged to examine their own treatment
of colleagues, especially those of a different gender or racial or
ethnic group, and the subcommittee recommends that overall efforts
continue in order to effect meaningful changes to eliminate racism
and sexism in the profession.
- The BBA is encouraged to continue reaching out to minority and women
bar associations to obtain diversity in bar leadership positions and
activities, and to continue to educate and sensitize the legal community
to be more receptive to attorneys of different racial and ethnic backgrounds.
BOSTON BAR ASSOCIATION REPORT
OF THE TASK FORCE ON PROFESSIONAL FULFILLMENT [1]
INTRODUCTION
At the request of its President, Joel M. Reck, the Boston Bar Association
("BBA") formed a Task Force to examine the issue of professional fulfillment
in the legal profession here in Boston. John J. Curtin, Jr., of Bingham,
Dana & Gould LLP, chaired the Task Force on Professional Fulfillment
("Task Force") which included attorneys from both the public and private
sectors. These attorneys represented law firms, academia, government,
corporations and solo practice.
In recent years, there have been many articles and surveys indicating
a growing dissatisfaction with the legal profession. The Young Lawyers
Division of the American Bar Association conducted extensive surveys
in 1984 and 1990, and a more limited survey in 1995, on career satisfaction.
The ABA concluded that although the 1984 and 1990 surveys "found that
the majority of both male and female attorneys are satisfied overall
with their jobs[,]" there has been a deterioration in the legal workplace
environment and a resulting increase in dissatisfaction throughout the
profession. See American Bar Association, "The Report Of At The
Breaking Point, A National Conference On The Emerging Crisis In The
Quality Of Lawyers' Health And Lives -- Its Impact On Law Firms And
Client Services" (1991) at 1. The ABA's 1995 survey reflected that about
one third of the respondents would "strongly" consider leaving their
current position within the next two years, while another 31% "might"
consider doing so. See American Bar Association, "Young Lawyers
Division Survey -- Career Satisfaction 1995" at 1 and 9.
This BBA Task Force addressed the following three major questions
- What are the causes of lawyer satisfaction and dissatisfaction with
the profession?
- What institutional changes are possible to address dissatisfaction
and enhance satisfaction?
- What are the appropriate coping mechanisms for dealing with the
root causes of dissatisfaction which are not likely to change?
The seventeen member Task Force divided into the following eight
subcommittees: (1) Large Law Firms - Partners; (2) Large Law Firms -Associates;
(3) Sole Practitioners and Small Firms; (4) In-House Counsel; (5) Public
Service and Academia; (6) Senior Lawyers; (7) Law Students and Recent
Graduates; and (8) Women Attorneys and Attorneys of Color. This Report
includes separate reports and recommendations for each of these subcommittees.
Through representative focus groups and individual interviews, the Task
Force members examined the causes of satisfaction and dissatisfaction
for each of the above identified groups and proposed recommendations
and solutions for dealing with the lack of professional fulfillment.
The Task Force did not attempt a formal survey or an exhaustive study
of these causes but tried to achieve a representative sampling. As more
fully addressed below, some barriers to professional fulfillment pervaded
all types of legal practice, while other barriers appeared to be unique
to particular groups of attorneys.
The Task Force believes that the greatest strength of this report
is the report of each of the subcommittees. To fully understand the
relevance of this report, you must read the reports of those subcommittees
that are applicable and/or are of interest to you. Anyone interested
in the health of the profession should read the entire report. Each
of the subcommittee reports contains both findings and recommendations
for the most important issues raised in the respective focus groups.
The [2] Task Force members acknowledge
that the recommendations of the various subcommittees may represent
only one perspective and that not everyone will agree with all the recommendations.
However, it is necessary (1) to recognize that these recommendations
represent the honest feelings of a distinct group of lawyers, and (2)
to create a sincere dialogue to open the lines of communication on these
sensitive and important issues.
The nature of the experience of practicing law has not only changed
dramatically in recent years, but the rate of such change appears to
be accelerating. Some of the changes are quite positive, such as the
use of technology to reduce research and document preparation time,
the increase of women and people of color in the profession, the emergence
of new and exciting specialties, the use of alternative dispute resolution,
and generally the increase in lawyers' incomes. Other changes, however,
are not as positive, such as the increased pressures for more personal
productivity and for much faster response times, the commercialization
and commoditization of the practice of law, the loss of collegiality
and the breakdown in civility among lawyers as part of a growing feeling
of isolation and alienation, the loss of de facto tenure for partners
and the decreasing likelihood of associates, particularly in large firms,
becoming partners. It is important that we recognize that many of the
changes that have taken place are permanent changes, which need to be
better understood and managed by each of us. An increased sense of professional
fulfillment, however, is not predicated on returning to the status quo
ante. Instead we need to be realistic in setting goals and expectations,
which will not only deal in the most constructive possible manner with
these dramatic changes, but which will anticipate future changes in
the legal profession. Lawyers, as trained problem solvers, are especially
capable of facing these challenges in positive and creative ways.
While generally attorneys in Boston enjoy the intellectual challenges
of the practice of law, the level of career satisfaction varies dramatically.
The members of the Task Force note that professional fulfillment
is first and foremost the responsibility of each individual attorney.
Each attorney must identify and examine his or her own interests, priorities
and expectations in pursuing a legal career. Attorneys cannot and should
not rely solely on institutions, whether they be law firms, corporations
or government agencies, to make them feel professionally fulfilled.
A crucial element of professional fulfillment is whether the individual
attorney's expectations of the practice of law are consistent with the
realities of the practice. In addition, there appears to be a correlation
between the attorney's satisfaction and the attorney's ability to control
his or her professional life.
Over the past twenty years, the market place has increasingly required
law firms and other employers of lawyers to adopt more efficient and
business-like approaches. These financially motivated practices not
only cause lawyers to feel greater stress, but also feed the notion
of many lawyers that the practice of law has become a business as distinguished
from a noble profession. Sound business management practices per se
should not be antithetical to practicing law as a noble profession.
In fact, such sound business practices should, in many cases, enhance
one's sense of professional satisfaction. Too narrow a focus on profitability
and increased compensation, however, especially if carried to an extreme
over many years, has potentially serious consequences. To the extent
that financial "bottom line" considerations continue to gain greater
relative weight in law firms as distinguished from the many other objectives
and interests of lawyers, then we need to understand the implications
of the trade-offs that are being made.
One of the most interesting and ironic findings of the Task Force
was a reiteration of the theme that money does not buy happiness. Of
the Task Force's eight subcommittees, associates in large firms expressed
the most dissatisfaction. Notwithstanding the continuing significant
increase in first year associate compensation in the last two years,
these associates, as a [3] group, feel
quite discontent. Lest any large law firm dismiss these concerns as
inapplicable to it, it is striking that there was virtual unanimity
among these associates who came from approximately twelve different
law firms. The intensity and nature of their concerns need to be not
only noted, but, more importantly, dealt with in constructive ways.
Ironically, by contrast to the unhappiness of highly compensated
large law firm associates, small firm and solo practitioners were among
the most professionally fulfilled even though they often face serious
financial struggles in the practice of law. Not surprisingly, the sense
of control over one's professional life, which is maximized in the solo
and small firm setting, was an important ingredient in achieving a comfortable
level of professional fulfillment. Moreover, attorneys in the public
sector, in corporate legal departments and in academia, many of whom
had left private practice, commented that they generally were satisfied
with their career choices even though they do not earn the income of
practitioners in law firms.
Large firm associates, however, experience not only very limited
control in their professional lives, but often bear the brunt of inadequate
instructions and/or unnecessarily harsh deadlines as the result of case
mismanagement by some partners. This experience is exacerbated by the
increasingly high minimum billable hour requirements, whether required
formally or by the culture of the firm, as well as by debt burdens that
on average are approaching $100,000 per new lawyer. Furthermore, the
probability of a young lawyer becoming a partner has also dramatically
changed during the last decade. No longer can a young associate count
on becoming a partner simply by working hard and by doing excellent
legal work. Under these circumstances, it should not be surprising that
large firm associates have consistently expressed their lack of professional
fulfillment.
Large law firms are increasingly recognizing the need for better
management of the outplacement process once partnership decisions have
been made, but many associates are leaving firms sooner to avoid being
branded by a negative decision. Large law firms are thus increasingly
caught between the enormous direct and indirect costs of hiring and
training associates, while being able to recover less and less of associates'
training time in fees. With associate attrition occurring earlier, there
is great pressure on the management of law firms to improve the management
of associates, for both financial and non-financial reasons. To the
extent that associates are happier, not necessarily because they are
working fewer hours, but because they are managed better and treated
better, then both partners and associates are winners.
In the past, Boston had a small legal community where attorneys
knew one another and were more collegial. Today there are approximately
18,000 attorneys practicing in the Greater Boston area. Accordingly,
lawyers report that with this ongoing growth in the legal profession,
they are less likely to meet the same attorneys throughout their careers.
Attorneys today do not have the opportunities to build personal relationships
with other attorneys. As one author has noted, "[p]racticing attorneys
have commented that it is much easier to act abusively toward opposing
counsel when one does not know them and will probably never see them
again." Kathleen P. Browe, A Critique Of The Civility Movement: Why
Rambo Will Not Go Away, 77 Marq.L. Rev. 751, 758 (1994). This behavior,
however, mirrors the growing incivility in society as a whole. Another
author describes "'drive-by encounters' of rudeness in which one can
'get in a quick cheap shot and move on. If you never expect to see them
again, it is the perfect opportunity -- and what is the consequence?'"
Laura Pappano, The Crusade For Civility, The Boston Globe Magazine
(May 4, 1997) at 39.
Men and women attorneys, more experienced and junior attorneys
alike, commented on the decline of professionalism. There have been
numerous articles written on the lack of professionalism among attorneys.
See American Bar Association Report, "Teaching and Learning Profession-[4]alism"
(1996); Ellen S. Podgor, Lawyer Professionalism In A Gendered Society,
47 S.C.L.Rev. 323 (1996). The enormous growth of the legal profession
over the last twenty years has led to increased competition among attorneys
for clients and has transformed the sense of a closely knit legal community
to a more anonymous and less mutually dependent community.
Several overlapping barriers to professional fulfillment emerged
from the subcommittee reports. These areas of concern included:
- the difficult balance among home life, work life and community service;
- the increasing measurement of and pressures for greater productivity;
- the increasing commercialization and commoditization of the practice
of law;
- the increasing trend towards clients retaining, and lawyers functioning
as, mere technicians rather than counselors providing advice, guidance
and counsel;
- the increasing incivility among attorneys, especially litigators;
- a growing sense of isolation and alienation expressed by many attorneys,
regardless of the nature of the workplace;
- the lack of effective training and mentoring for attorneys;
- the debt burden incurred by law students, which not only limits
the career choices of recent law school graduates, but also limits
the pool of applicants who can afford law school. This burden has
a disproportionately heightened effect on economically disadvantaged
students;
- the financial and technical difficulties to access the tools of
the legal trade, which are felt most strongly by sole practitioners,
public service attorneys, and solo in-house counsel who generally
earn less income;
- the lack of training for all lawyers on how to manage the practice
of law in both the public and private sectors; and
- the increasingly negative image of attorneys expressed by the public
and exacerbated by the media and partisan interests.
With regard to all the barriers to professional fulfillment identified
and addressed by the eight Task Force subcommittees and all the recommendations
made by those subcommittees, the Task Force hopes that these issues
will provide a basis for ongoing discussion and action, where appropriate,
in the legal workplace.
REPORTS OF THE SUBCOMMITTEES [5]
LARGE LAW FIRMS
- PARTNERS
The members of the Large Law Firm Partners Subcommittee,
John D. Hamilton, Jr., Chair, Paula Alvary, Antoinette D. Hubbard and
Joel M. Reck, examined the issues of professional fulfillment for partners
in large law firms. Through individual interviews and a discussion group
with partners, the members of the subcommittee concluded that a sense
of professional fulfillment has deteriorated for many large law firm
partners over the past quarter century.
A recent National Law Journal survey of the 125 largest
law firms reveals that [p]artners, by and large, like being lawyers.
It's the perils of big law firm practice they're not thrilled about.
Chris Klein, Big-Firm Partners: Profession Sinking, National
Law Journal (May 26, 1997) at A1. The author of the article noted
that [p]rivate practice has turned sour, partners say, because the law
has become a fiercely dollar-driven business. To keep the money flowing,
attorneys at all levels are spending substantial amounts of time trying
to coax new clients to the firm, at the expense of time spent on legal
substance -- their main source of professional satisfaction. Id.
A 1994 partner satisfaction survey found that [m]ost [partners
responding to the survey] professed a pervasive discontent -- if not
a profound displeasure -- with their careers. Is It Possible To Put
Passion Back Into The Practice Of Law?, Partner's Report (November
1994) at 1. The survey concluded that the primary causes of the partners'
dissatisfaction with their careers were a failure of expectations and
a lack of control. Id. at 8. As noted earlier in this report,
these themes of expectations and control have emerged in the various
subcommittee reports of the Task Force.
The members of the Large Law Firm Partners Subcommittee found that
some fulfilling aspects of the profession for partners include the intellectual
stimulation and challenging nature of the work, the opportunities for
community involvement and the far greater economic rewards in comparison
to the vast majority of society. Through their interviews and the discussion
group, however, the subcommittee members identified the following obstacles
to professional fulfillment for partners here in Boston:
1. the increased pressure on productivity created by the ascendancy
of the billable hour as the primary source of a firm's revenue and a
significant measure of the partner's contribution to the firm;
2. a significant shift in the compact between partners and associates;
3. the elimination of tenure and the introduction of mandatory
retirement as attributes of partnership in large firms;
4. the increased mobility of partners and of clients resulting
in a lack of stability in those relationships and a heightened competition;
5. the diminished societal respect for attorneys, with a concomitant
lessening of a sense of self-worth;
6. the technological advances which have quickened the pace of
the practice, assuring clients of 24-hour access and leaving partners
with little time to reflect on answers to the clients' needs;
7. the dramatic increase in the use and the stature of in-house
counsel;
8. the increased lack of civility in both transactional and
litigation practices;
9. the increased competition for the best and the brightest associates,
many of whom are laden with debt forcing the increases in starting compensation
and attracting many who might rather have pursued alternative careers
in public interest or public sector practices or academia; and [6]
10. the increased legislative and regulatory law requiring increasingly
narrow specialization in areas of practice which may prove to be highly
transitory.
The partners recognized and acknowledged that the resulting transformation
of large law firm practice is a natural and inevitable evolution in
response to the growing societal and economic pressures. Moreover, with
regard to professional fulfillment, the partners focused on their expectations
of large firm practice. Generally, the partners noted that when their
expectations of practice are consistent with the realities of their
practice, they feel more satisfied with their careers. The partners
cautioned, however, that if every graduating law student who joins a
large private law firm expects to become a partner, eighty to ninety
percent will not achieve professional fulfillment. Large law firm practice,
however, can provide new associates with (1) the opportunity to achieve
their full potential as lawyers through training and development while
associates; (2) candid assessments of their prospects for partnership;
and (3) assistance in finding satisfying alternative career paths if
partnership is not available.
For partners, large law firm practice does not provide perfect
balance among family, professional and community life. Moreover, partnership
is no longer synonymous with lifelong employment. The National Law
Journal noted that [a] partner's rewards are greater if he makes
a lot of rain, but the penalties can be severe if one isn't successful.
Job security, partners across the country complain, has become an oxymoron.
National Law Journal at A25.
The subcommittee recommends that law schools, law firms and bar
associations provide information to law students and new lawyers about
large firm practice so that they clearly understand the trade-offs related
to this type of practice and make informed choices about their careers.
If individuals are more fully and fairly informed of the trade-offs
which inevitably must be made as a private practitioner, they can better
assess their own priorities and determine whether the benefits of large
law firm practice outweigh its obvious burdens. Only then can expectations
be managed by each individual and by firms so that reasonable goals
will be achieved, resulting in a renewed sense of professional fulfillment.
RECOMMENDATIONS
The Task Force recommends that:
1. candid communication be encouraged in law schools, law firms
and bar associations. Law schools should provide more real life training
so that prospective practitioners will have a realistic understanding
of what to look for and what to expect when choosing a large law firm.
Law firms should provide more practical orientation programs and constructive
feedback to assist associates in making the transition from law school
to practicing law and to enhance their chances of successful careers
either as partners or in satisfying alternative roles. The bar associations
should sponsor more continuing legal education programs relevant to
the issue of professional fulfillment and should encourage greater participation
in bar activities and community service as opportunities for interaction
with other attorneys on a non-adversarial and non-competitive basis
so that the pursuit of fulfillment may be shared openly.
2. bar associations and the judiciary be more active in encouraging
civility and professionalism among attorneys.
3. large law firms, in whatever way fits their particular culture,
confront the tension which exists for both firms and partners between
increasing revenues and having a life. Perhaps some firms will make
the issue of professional fulfillment a key topic at a retreat or will
establish a task force to examine the issue. The format is less important
than a broad involvement across the partnership which will permit addressing
the trade-offs and possible mitigation measures with a level of candor.
4. large law firms consider accelerating their efforts to shift
revenue produc-[7]tion away from a dependency
on the billable hour.
5. large law firms consider developing a more systematic rotation
within the partnership of the responsibility for maintaining the firm's
revenue production and its responsibility for community service, thereby
giving more partners the opportunity to re-energize themselves by confronting
new and different challenges.
6. large law firms encourage partners to manage their expectations
and to recognize that the annual percentage increases in compensation
witnessed in the past few years will inevitably moderate and that monetary
rewards alone are not what is meant by professional fulfillment.
LARGE LAW FIRMS
- ASSOCIATES
The Large Law Firm Associates Committee, chaired by Mary
C. Mazzio, and consisting of Kevin M. McGinty and Maura E. Murphy, convened
two focus groups of mid-level and senior associates from approximately
twelve large law firms in Boston. The members of this subcommittee identified
the following issues and concerns of associates in large firms: (1)
diminished opportunities for partnership; (2) issues with respect to
unclear partnership criteria; (3) billable hour requirements and off-track
positions; (4) training and management; and (5) retention.
The common theme uniting the issues outlined above is that associates
believe that the opportunity to grow and develop professionally with
a firm has become diminished. Decreased opportunity for partnership
admission, more stringent partnership admission criteria, deficiencies
in training and mentoring, and high levels of attrition all send the
message to associates that they are fungible providers of legal services
and not valued members of a professional team. The associates recognize
that economic pressures may prevent any meaningful expansion of partnership
opportunities and are honest enough to admit that part of the allure
and value of partnership is its exclusivity. The associates nonetheless
advance recommendations which are intended to help law firm management
assist associates in the pursuit of professional advancement through
improved training and mentoring and greater integration of associates
into the practice. Ideally, in exchange for associates' dedicated service
to firms and their clients, firms will (a) facilitate associates' pursuit
of advancement within the firm and in the profession, (b) provide honest
and early appraisals of prospects for advancement within the firm, and
(c) allow firms and associates to optimize their time together.
1. Diminished Opportunities for Partnership
Although associates believe that partnership is no longer
synonymous with tenure or job security, partnership remains a very important
goal for associates. Partnership admission represents a public validation
of being a competent and respected lawyer. Associates, however, are
concerned that their prospects for partnership are becoming increasingly
dim. Existing partnerships are swollen with non-business generating
partners who were admitted based on their perceived client service skills
(as opposed to business generation skills). As a result, firms are admitting
fewer associates into the partnership. Furthermore, because the client
service roles are filled with existing partners, those associates who
are chosen for partnership tend to have strong business generation skills.
Although the group briefly discussed various ways to increase partnership
opportunities for associates (e.g. eliminating the distinction between
non-equity and equity partnership), associates were not optimistic that
firms would be willing to make dramatic changes to the current partnership
structure. Indeed, associates found that some partnership models, which
would increase opportunities for admission [8]
(e.g. an easy in, easy out structure, or replacement of expensive, non-business
producing senior partners with inexpensive, non-business producing junior
partners) were distasteful and would render partnership not worth the
effort.
RECOMMENDATIONS
The Task Force recommends that:
1. law firms consider examining the traditional law firm partnership
structure to determine whether such a structure continues to make sense
in today's economy.
2. law firms attempt to provide each associate with an honest assessment
of one's chances for partnership at each annual evaluation taking into
account the associate's abilities and the needs of the firm's practice.
3. law firms consider becoming more pro-active in helping an associate
overcome weaknesses or problems raised in an evaluation. If a firm identifies
an area in which an associate needs to improve, it is incumbent on the
firm to provide the associate with work assignments aimed at addressing
that deficiency.
2. Partnership Criteria and Business Generation
As noted above, because existing partnerships are top-heavy,
firms are imposing increasingly stringent criteria in order to admit
fewer partners. Insofar as partnerships already are loaded with attorneys
who do not originate business, partnerships tend to favor those associates
who demonstrate business generation skills. As business generation becomes
an increasingly important factor in determining who will and will not
make partner, associates feel pressure to project the image of someone
likely to be able to produce business. Associates, by and large, however,
are not trained how to generate business. The fact that the time spent
for client development training is not credited towards one's billable
hours creates a disincentive for partners in many firms to provide such
training.
Some associates do have opportunities to begin producing business,
but require the assistance of partners to close the deal. However, associates
report that some firms have compensation policies which reward business
production on an eat what you kill model (providing 100% of the business
production credit to the attorney who introduced the client to the firm)
and which provide no incentive for a partner to assist an associate
(or, for that matter, other partners) in closing the deal to bring in
new clients.
RECOMMENDATIONS
The Task Force recommends that:
1. law firms consider providing more on-the-job training to associates
to help them to develop their business development skills because the
ability to generate business is such an important partnership criterion.
Specifically, the Large Law Firm Associates Subcommittee recommends
that older and more senior lawyers consider spending time teaching junior
associates how to deal with clients effectively and how to originate
business.
2. law firms consider examining their existing billing and compensation
systems in order to provide credit to partners for the care and nurturing
of junior associates' professional and business development skills.
Some firms already have implemented such programs and have successfully
used team production approaches in which partners assist associates
in producing new business while obtaining a portion of the business
production credit.
3. partners in law firms try to involve junior associates in marketing
efforts. If a response to a request for a proposal lists an associate
among the personnel who will staff a matter, the associate should be
brought along for the pitch meeting. Bringing the associate to the meeting
allows him or her to observe the business development process firsthand,
helps bond the associate to the client, and provides a form of on-the-job
business development training.
4. law firms consider instituting comprehensive marketing training
early in an associate's career. The first two years of an [9]
associate's career development should continue to be focused on acquisition
of substantive legal skills. Beginning in the third year, however, associates
should be trained in client service and client relations skills and
be included in clientacquisition efforts. Further and more advanced
training should be offered as the associate advances in seniority.
5. law firms, not associates, attempt to resolve the contradiction
between the requirement to develop business and the expectation that
associates will bill large numbers of hours doing legal work to the
exclusion of all else, including business development efforts. This
contradiction reinforces the associates' perception that firms do not
care about associates' professional development and only view them as
engines for economic gain. One way to resolve this issue is to credit
time spent developing clients as billable , or otherwise recognize efforts
aimed at business production. If a firm discourages associates from
doing anything but maximizing billable hours, the firm should not then
make partnership or advancement decisions based on potential for business
production.
6. law firms consider providing modest expense accounts to permit
associates to take clients to lunch and to engage in other marketing
efforts.
7. law firms consider employing marketing directors to make sure
that associates are involved in marketing efforts, especially women
attorneys and attorneys of color.
8. law firms consider whether they are adequately recognizing and
valuing client service skills, in addition to business generation skills,
when evaluating an associate's prospects for partnership. Client binding
skills which grow new business from existing clients are the most important
source of business production. Attorneys with such skills should be
held in higher regard.
3. Billable Hour Requirements and Off-Track Positions
Most associates are overwhelmed by the tension between
the typical large firm's billable hourly requirements and the need to
devote additional time to develop one's practice, generate business,
attend seminars, and participate in firm administrative matters. One
associate stated that large firm expectations of an associate favored
the profile of a single wage earner, which is no longer the traditional
profile of an attorney. With respect to hours, the associates discussed,
with much controversy, the billable hours expectation and the solutions
which might be available for working parents who, for a short time in
their careers, might not be able to meet the current stringent requirements
to become a partner (e.g. generate business, participate in firm management,
and bill 2000 hours per year).
The associates discussed the possibility of off-track positions
for those attorneys who wished to work fewer hours. The subcommittee
learned, however, that the associates were concerned that off-track
or staff attorneys would (i) be viewed as second class citizens, (ii)
receive less sophisticated work, and (iii) reduce the amount of work
appropriate for senior and mid-level associates. Interestingly, most
of the associates present, when asked if they would accept such an off-track
position, responded that they would not be interested in such a position
given the above-referenced concerns.
Many firms in the city require a part-time associate to work full
time for at least a period of one or two years before evaluation for
partnership. At least two firms in the city now evaluate part-time associates
for partnership.
RECOMMENDATIONS
The Task Force recommends that:
1. law firms consider permitting associates to work on a part-time
basis without being taken off-track, and simply (a) adjust the particular
associate's compensation, and (b) extend on a pro-rata basis, the length
of time to become a partner.
2. law firms attempt to recognize the dedication and concerns of
working parents who may work part-time by evaluating part-time associates
for partnership (rather than requiring such parents to return full-time).
[10]
4. Training and Management
Although most firms offer fairly comprehensive formal in-house
training programs and/or access to continuing legal education programs,
associates uniformly believe that the most valuable and effective training
is on-the-job training. Firms' approaches to such training tend to be
inconsistent. Assignments often are given in haste on short deadlines
set by disorganized managers. (For example, one associate bemoaned the
common plight of the 5:00 p.m. assignment -- where the partner calls
the associate at 5:00 p.m. with an assignment that is due the next day,
then heads out the door without telling the associate how to complete
the task. The associate then spends the night in the library re-inventing
the wheel.) Even if managers are well-organized and give assignments
with reasonable deadlines, the amount of time which can be spent on
instruction is limited by client-billing concerns and the absence of
any other means by which the partner or associate can be credited or
paid for such training time.
Associates often find themselves at sea with regard to their professional
development. Most have no idea whether the skill set that they have
acquired is appropriate to their level of seniority. Many feel that
they are left to their own devices in seeking and obtaining assignments
aimed at rounding out their experience. Few firms track their associates'
professional advancement to ensure that they have achieved the appropriate
developmental benchmarks.
In addition, management skills of partners continue to impede associates'
professional fulfillment. While some partners are good and fair managers,
the associates believe that most partners lack necessary management
skills. The roots of bad management are many and varied. Some bad managers
have hearts of gold and abysmal time-management skills. Others are victims
of a cycle of abuse in which partners who were ill-treated as associates
repeat the same pathology in their treatment of associates. Whatever
the cause, poor management skills usually are evident at the associate
level, but firms take no pains to train associates in management skills
and rarely make management ability a partnership admissions criterion
or a factor in compensation.
Associates believe that firms are not willing to protect associates
from mismanagement unless the issue causes a client relations problem.
Associates believe that firms will tolerate a substantial amount of
abuse of associates by a partner who is perceived to be economically
valuable to the firm. Even firms with feedback mechanisms nominally
intended to address associates' concerns regarding management will shy
away from disciplining the abusive rainmaking partner.
RECOMMENDATIONS
The Task Force recommends that:
1. law firms attempt to ensure that associates have appropriate
work experience with assignments which expose them to the spectrum of
skills appropriate to their level. Assignments should be given to associates
with an eye toward advancing their professional development. Firms should
consider developing benchmarks in their practice groups which can be
used to track associates' advancement and which can guide training efforts
which are focused on the needs of particular associates.
2. law firms attempt to provide more consistent feedback. Associates
should know before their formal evaluations whether there are issues
with particular assignments. Early identification of problems provides
the best means for correction.
3. law firms consider encouraging on-the-job training by giving
partners credit towards their billable hours for training time in order
to avoid pressures put on the training process by client billing constraints.
Likewise, the Large Law Firm Associates Subcommittee recommends that
law firms consider permitting partners more latitude in writing off
an associate's time. Again, if such training time could be creditable,
then partners and more senior associates would have more incentive to
properly teach junior associates. [11]
4. law firms attempt to enhance the management skills of partners
by (i) instituting management training at the mid-associate level (to
prevent the cycle of abuse from continuing), (ii) making management
skills a criterion for partnership admission, and (iii) linking management
skills with compensation.
5. law firms consider instituting an upward-evaluation program
in which associates evaluate partners' management skills. Some firms
recently have implemented such programs, and have made the results of
the evaluations a partnership and a compensation criterion.
6. law firms consider training associates how to manage their secretaries
as well as their time, (e.g. time management courses to help an attorney
be more organized and productive).
5. Retention
Many large firms have difficulty retaining talented associates.
Issues which contribute to this phenomenon are (i) perceived lack of
opportunity, (ii) isolation, (iii) workload perceived to be out of proportion
to the professional rewards which are available to the associate, (iv)
lack of professional development, and (v) lack of involvement in the
firm and its client service mission.
RECOMMENDATIONS
The Task Force recommends that:
1. law firms consider establishing meaningful associate liaison
groups which include senior decision-makers in the firm.
SOLE PRACTITIONERS
AND SMALL FIRMS
The Subcommittee On Sole Practitioners And Small Firms,
with Virgen M. Palermo, as Chair, and Katherine S. McHugh, met with
a group of sole practitioners, seasoned veterans, most of whom began
their careers in another type of practice and sought out solo practice
by choice. For many of these attorneys, lifestyle and professional fulfillment
figured into their choice to pursue a solo practice. Personal freedoms
to define their practices and to control their calendars contribute
to their satisfaction with the practice of law. Apart from concern about
their incomes and the isolation of solo practice, their frustrations
derive largely from external realities that impact sole practitioners
disproportionately.
External realities that negatively impact sole practitioners' sense
of fulfillment grow out of an income level that is marginal, itself
based on charges that represent what they feel their clients can afford
rather than the value of their services or the cost of doing business.
Some of the financial burdens of law practice are not limited to sole
practitioners but are felt more acutely by them because lawyers in solo
practice worry about money on a day-to-day basis in a way that lawyers
in other types of practices do not. Moreover, sole practitioners tend
to be closer to the needs and resources of their individual paying clients,
the backbone of their practices.
Through this group, the subcommittee identified the following barriers
to professional fulfillment for sole practitioners and attorneys practicing
in small firms: (1) a sense of isolation from the rest of the profession;
(2) the difficulty in determining the value of the legal services provided
to individual clients; (3) the inability to access the tools of the
trade because of limited financial resources; and (4) the negative public
image of attorneys.
1. Isolation
Many attorneys in the discussion group remarked that by
practicing on their own, they often feel isolated from the rest of the
legal profession. In order to overcome this isolation, the sole practitioners
have developed informal networking groups of colleagues to whom they
can turn for discussion, advice, or support. The Subcommittee On Sole
Practitioners And Small Firms [12] recommends
that the BBA and other bar associations attempt to address this sense
of isolation either through bar-sponsored mentoring programs or through
informal networking opportunities by the BBA's Solo and Small Firm Practice
Section. The lawyers in the focus group expressed that they valued these
informal relationships with other attorneys because they enhance the
quality of their practice and add to their professional fulfillment.
2. Value
Sole practitioners generally represent individuals paying
for legal services out of their own pockets. Given the complexity of
many legal issues and transactions, the subcommittee learned that sole
practitioners face a sometimes acute conflict between zealous representation
of clients and representing clients within their pocketbooks. These
attorneys sometimes decline cases because they do not feel that they
can offer good value to individuals, given the complexity of their needs
and the time obligations involved for which they are not likely to be
compensated. Such decisions, to the extent that they are on the increase,
can be seen as a contributing factor in the growing burden of pro
se cases in the court system. In addition, middle class clients
who give up legitimate cases and forego litigation because of the high
cost feel angry because they have been denied access to the judicial
system.
The attorneys suggested that a possible solution would be to encourage
courts to be more active managers of cases, to curb litigation excesses
and to bring the cost of litigation more in line with the value of the
conflict. In other areas of practice, the solutions are more elusive,
but threaten both the perception and the reality of the value added
by the legal system to the solution of everyday problems. Part of this
value issue includes the negative effect of the pressure to drive down
costs on an attorney's sense of the craft of lawyering. Sole practitioners
explained that fierce price competition encourages attorneys to make
do with an acceptable solution without the opportunity to explore a
problem and design a creative solution specific to the client's needs.
The growth of pro se litigants and the proliferation of pre-packaged
legal forms and software programs are symptoms of a wider problem, which
is now felt most seriously by sole practitioners.
3. Access To The Tools Of The Trade
Access to the tools of the trade is more important to lawyers
practicing alone or in small groups than to other lawyers, and these
practitioners find many of those tools beyond their means. Many sole
practitioners report that their incomes do not regularly reach the salaries
of entry-level associates at large law firms. Accordingly, these attorneys
explain that they cannot afford to pay dues to join bar associations
and the Social Law library or to pay subscription fees for Massachusetts
Lawyers Weekly or other legal periodicals. Similarly, they report that
they cannot afford malpractice, health, disability and life insurance.
At present, the fee structure of bar associations, including the
BBA, is based on years in practice. Through the discussion group, the
subcommittee discovered that the income for sole practitioners does
not necessarily increase with each year in practice. Because many of
the attorneys in the group had practiced in another area of the law
before choosing to practice on their own, the bar dues are beyond their
means because these dues are based on their years in practice rather
than their income. Moreover, these attorneys report that the additional
costs of training, either through bar-sponsored or other continuing
legal education programs, are also prohibitive to them. The sole practitioners
did not feel that an income-based dues option would be insulting or
demeaning to them. On the contrary, they indicated that they would welcome
the opportunity to participate in bar activities at a cost that they
can afford. The subcommittee notes that the attorneys in the discussion
group were generally unaware of existing BBA membership discounts.
The structure of malpractice insurance makes it difficult for sole
practitioners to [13]
afford. Rate structures require the identification of specialties,
some of which carry higher premiums than others. Malpractice insurers
strongly discourage efforts to collect fees from clients because of
their fear that clients will counterclaim for malpractice. In addition,
insurers give no credit for a positive or flawless claims history and
charge higher rates the longer an attorney has been practicing, regardless
of claims history or any inquiry into the range of amounts in controversy
represented within the lawyer's range of practice.
4. The Negative Public Image Of Attorneys
Many of the sole practitioners felt that they were affected
by the prevailing negative public image of attorneys as sharks or fat
cats. Their clients sometimes begin the lawyer-client relationship with
the view that the lawyer is rich and uninterested in the problems of
ordinary people. These attorneys suggested that most people have no
clue what lawyers do and why lawyers are important to society. They
urged the bar association to promote a realistic view of lawyers, based
on what the bulk of lawyers do and earn here in Boston and to publicize
their importance to the functioning of a just society.
RECOMMENDATIONS
The Task Force recommends that:
1. sole practitioners be encouraged to establish informal networking
groups of colleagues for advice, support, and guidance.
2. the BBA revitalize its mentoring program to include law students,
new lawyers, sole practitioners and senior lawyers.
3. the BBA's Solo and Small Firm Practice Section continue to encourage
informal networking opportunities, including on-line discussion groups,
that may be broader than one-on-one mentoring relationships.
4. the judiciary be encouraged to take an active role in the management
of litigation and to establish an appropriate relationship between the
magnitude of the dispute and the cost to resolve it.
5. the BBA, through sponsorship of a participatory symposium and
discussion series, initiate an open discussion within the legal profession
about the growing cost of legal services related to the nature of the
problem at issue and to what clients can reasonably afford to spend
to solve that problem.
6. the BBA examine its current dues structure to seek to make membership
financially feasible for those attorneys whose years in practice are
not reflective of their incomes.
7. the BBA conduct a study of the malpractice rate structure and
its relationship relative to the quality of legal practice.
8. the BBA develop new and ongoing ways to reach out to solo and
small firm practitioners to let them know of services, products and
discounts available through the BBA that are specifically responsive
to their needs.
9. the BBA launch a public education campaign that highlights (a)
the contributions that individual attorneys make to the community and
(b) the relationship of attorneys and the legal system to important
societal values.
IN-HOUSE COUNSEL
The In-House Counsel Subcommittee, consisting of Donald G. Leka, Chair,
John D. Hamilton, Jr. and Joel M. Reck, conducted focus group meetings
with lawyers from large legal departments, mid-size legal departments
and in-house solos. The subcommittee concluded that as a group, the
in-house counsel attorneys were satisfied with their career choices
to practice in an in-house counsel office and generally felt professionally
fulfilled with the practice of law. Most in-house counsel attorneys
had practiced law in another setting, primarily in law firms, before
joining a corporate law office. Generally, in-house attorneys expressed
that their expectations of in-house [14]
practice coincided with the realities of that practice. Moreover, in-house
lawyers reported that although they continued to work long hours, they
were better able to control their workloads and did not feel constrained
by billable hours.
While generally satisfied with the profession, in-house counsel
staff reported to the subcommittee the following obstacles to professional
fulfillment: (1) the benefits and burdens of being a generalist; (2)
isolation in the in-house counsel practice; (3) being staff in a corporation;
(4) second class status as an attorney who does not practice in a law
firm; and (5) inability to develop one's own practice.
1. Being A "Generalist"
Through these focus groups, the In-House Counsel Subcommittee
examined the different dynamics operating in an in-house counsel setting
versus a law firm. Because the meter is running when clients contact
attorneys in firms, clients often strictly tailor their questions to
elicit precise, narrow technical responses. In an in-house counsel setting,
the client approaches a fellow employee, who is the attorney, often
seeking advice and counsel on a wide range of issues. This provides
in-house attorneys with an opportunity to be an adviser to the client
as well as an advocate on the client's behalf.
The in-house counsel noted, however, that being a generalist also
has its burdens. In-house attorneys need to learn entirely new fields
of law under time pressures. The subcommittee concluded that primers
or tutorials on a wide range of topics would be a useful resource to
in-house staff.
2. Isolation
The subcommittee discovered that many in-house lawyers
reported that they feel segregated from the rest of the legal profession.
This sense of isolation was particularly acute among in-house attorneys
from small departments or solo in-house practices. The in-house attorneys
explained that they do not have opportunities to network and brainstorm
with other attorneys. They further commented, however, that although
they have frequent contacts with their outside counsel, their outside
counsel cannot meet these networking needs because of the in-house attorneys'
competition with outside counsel and the pressure on outside counsel
to bill their time. Accordingly, the subcommittee concluded that bar
associations and similar professional organizations can play a role
in promoting networking opportunities for in-house counsel attorneys.
3. Being Staff In A Corporation
In-house counsel attorneys commented that their success
and professional development depend on the evaluation of business people
who can judge lawyers by little more than their bedside manner. In the
corporate environment, attorneys are unlikely to play a central role
in the organization's mission. Therefore, in-house counsel offices are
often viewed as cost centers to the corporations, rather than as players
that directly produce results for the corporation. To overcome this
obstacle to professional fulfillment, many attorneys move from the general
counsel's office into management of the business aspects of the corporation.
4. Second Class Status
Although there is a perception that real law is practiced
in law firms, generally, the in-house counsel attorneys do not feel
that they are second class attorneys or that they are viewed as second
class attorneys by their colleagues or the public. The subcommittee
ascertained that many corporations now are using their in-house staff
to perform more substantive work rather than hiring outside counsel.
Moreover, in-house counsel report that they appreciate and enjoy their
roles as clients to outside counsel. Although many recalled the fee
pressure from outside counsel when they were in private practice, as
in-house counsel, they report that they are rigorous in reviewing and
commenting on the bills received from their outside counsel.
5. Inability To Develop One's Own Practice
In-house attorneys report that generally there is a collegial
relationship between [15] the corporate
client and the inhouse counsel attorney. They cautioned, however, that
inhouse counsel are in arranged marriages with their corporate clients.
Accordingly, they generally do not have the freedom to select the work
that they do. Moreover, although inhouse attorneys never develop a portable
source of revenue, they do have the opportunity to develop relationships
with their corporate clients.
RECOMMENDATIONS
The Task Force recommends that:
1. corporate management be encouraged to recognize the importance
of professional development to their in-house counsel staff and to encourage
their attorneys to participate in professional organizations such as
bar associations.
2. corporate management be encouraged to support their attorneys'
participation in pro bono activities that appropriately use their existing
skills.
3. the BBA modify its pro bono programs so that they are accessible
and meaningful to in-house counsel by using the skills unique to them.
4. the BBA facilitate small roundtable discussions among in-house
counsel having similar interests and challenges.
5. the BBA use its Web site to provide brief introductory summaries
for specific areas of Massachusetts law. This feature would allow attorneys,
including in-house counsel, to obtain some immediate proficiency in
an unfamiliar field and could provide additional resources for further
assistance.
PUBLIC SERVICE
AND ACADEMIA
The Public Service and Academia Subcommittee which included
Merita A. Hopkins, as Chair, Daniel R. Coquillette, Jessica A. Ladd
and Francis S. Moran, Jr., conducted separate focus groups of attorneys
from the public sector and attorneys from the teaching field. Attorneys
from both the public sector and the academic profession commented that
generally they are professionally fulfilled in the practice area that
they have chosen. As with in-house counsel, many of these lawyers had
practiced law in another setting, primarily in law firms, before entering
the public sector or academic world. Accordingly, the attorneys commented
that their expectations about the legal career path they had chosen
conformed to the realities of the practice. Moreover, both groups commented
that they had better control over how they spent their time.
A. Public Service
The Public Service and Academia Subcommittee convened a
focus group of attorneys who practice in various federal and state agencies.
Through this discussion group, the members of the Public Service and
Academia Subcommittee determined that in general there was a high level
of fulfillment within the public sector practice of law. The attorneys
in the group expressed that they are satisfied with their careers because
they are doing work that they believe in and generally have a higher
level of responsibility and decision-making authority in handling their
cases. Additional reasons for career satisfaction described by public
sector attorneys include strong attorney/client relationships; greater
opportunities to identify with the goals of their public client beyond
legal considerations; diversity of subject matter; diversity of tasks;
and management of their workloads without consideration to billable
hours.
Members of the subcommittee further discovered that several public
sector attorneys viewed their practice as a lifestyle choice. Most notably,
a lawyer may be more readily able to select a particular area of practice
or concentration within the law due to the public client's particularized
needs. Moreover, in some instances, there may be a more adaptable work
schedule to accommodate an attorney who has vari- [16]
ous commitments at work and at home.
The subcommittee also learned from this focus group that there
appears to be a higher degree of civility among public sector attorneys
both within the same agency and among various agencies. Moreover, the
public sector attorneys described more mentoring opportunities in their
offices, than in the private sector. They speculated that both the civility
and mentoring circumstances may be attributable to the lack of billable
hour requirements in the public sector. In addition, the public sector
attorneys appreciated the diversity in their organizations. Along with
the diversity of people, they also recognized that they are exposed
to a variety of ideas and viewpoints and they have benefited from a
sharing of those various views on legal issues.
For public sector attorneys barriers to professional fulfillment
include: (1) the lack of financial support in the public sector for
legal resources that are considered necessities within the private sector;
(2) the lack of training to manage a public law office; and (3) the
view of government attorneys as "second class" attorneys.
1. Lack Of Financial Support By The Public Employer
The Public Service and Academia Subcommittee ascertained
that the lack of financial support by the public employer for legal
resources can create a professional handicap for public sector attorneys
and prevent these attorneys from matching the resources of their colleagues
in the private sector. This lack of financial support from the public
sector organizations can lead to a less than professional image in the
attorneys' workplace. Some public sector attorneys described offices
that are overcrowded, are not properly cleaned and whose decor does
not project professional standards. In addition, conference room space
is generally minimal and not sufficient to meet the needs of the attorneys.
While the public sector attorneys agreed that there is a distinction
between a conscientious professional environment funded with public
money versus a law office created to attract a profitable clientele,
they further recognized that their professional image has a direct impact
on how they are viewed by their colleagues and the public in general.
In addition, this lack of financial support from the public employer
for legal resources also prevents attorneys from participating in professional
associations and activities. Although the public sector attorneys suggested
that participation in the profession outside the public workplace benefits
both the public client and the attorneys, they acknowledged that the
public sector employers do not recognize the value added to the services
received from supporting their attorneys in bar activities and outside
continuing legal education programs. Public sector attorneys expressed,
however, that participating in professional associations and continuing
legal education efforts would ensure their professional growth and would
assist them in better serving the needs of the public client. The members
of the Public Service and Academia Subcommittee encourage public sector
attorneys not to be deterred from participating in these types of professional
activities based on the perception that these activities are not within
the realm of justified business for government attorneys.
2. Lack Of Training To Manage A Public Law Office
Several public sector attorneys commented that they are
called upon to manage the workplace but rarely receive any formal management
training. They have traditional management issues and problems to address,
including unproductive employees. Accordingly, these public sector lawyers
described this lack of management training as an obstacle to their professional
fulfillment.
3. Government Attorneys As "Second Class" Attorneys
There is a general perception within the public legal community
that their practice is considered less professional than in the private
sector in terms of work demands, quality of work product and abil-[17]ty
to be measured in a competitive environment with clients. In general,
public sector attorneys are not recognized for their problem solving
abilities, hard work or accomplishments by their public employer, the
general public or their private sector colleagues. The Public Service
and Academia Subcommittee suggests that the bar associations profile
public sector attorneys as role models for other lawyers and publicize
their work, thereby helping to reform the image of public sector attorneys.
RECOMMENDATIONS
The Task Force recommends that:
1. public employers be encouraged to budget for minimum law practice
necessities, i.e. facilities, support staff, supplies, and research
capabilities, that are available to private sector attorneys. Books,
physical space and computer resources are essential tools for the practice
of law and should be considered a cost of doing business for the public
employers.
2. public employers be encouraged to recognize the participation
and representation of public sector attorneys within professional associations
as an important and necessary role to counsel the public client. The
public employers need to be informed that their attorneys are an essential
element for a balanced view in the professional legal organizations.
3. the BBA take an active role in bolstering the recognition of
public sector attorneys through an active public campaign advocating
financial support and acknowledgment of the public environment as a
respected career choice.
4. the BBA encourage involvement by public sector attorneys in
continuing legal education programs as both speakers and participants.
The Public Service and Academia Subcommittee further recommends that
the BBA consider a fee adjustment for continuing legal education programs
to allow public sector attorneys to participate.
5. the BBA offer a continuing legal education program devoted to
managing a public law office.
6. the BBA promote the public image of public sector attorneys
by profiling them and publicizing their achievements.
B. Academia
The Public Service and Academia Subcommittee convened a
focus group of both tenured and non-tenured faculty members from Boston
area law schools. Despite receiving a substantially lower income than
they could make in private practice, the law professors commented that,
in general, they enjoy teaching as a career choice. They appreciate
working with the students and value the freedom to do research and to
choose the focus of their academic interests. The academics noted, however,
that they cannot divorce themselves from the overall problems in the
profession. Accordingly, the professors focused on the following obstacles
to professional fulfillment: (1) debt burden; (2) tenure and job security;
(3) faculty politics; (4) non-tenure track faculty; (5) law school curriculum
and (6) diversity in the legal teaching profession.
1. Debt Burden
The subcommittee learned that escalating student debt loads,
stress about finding jobs, and uncertainty about the quality of professional
life in the practice of law all effect law school professors because
they have an impact on their past, present and future students. Professors
have always been informal career consultants, counselors and mentors
to their students. The professors are concerned that the high cost of
a legal education and the significant debt incurred by graduating students
are limiting the career choices of new lawyers. Law school debt is driving
the need for students to find high paying jobs.
Although they acknowledge this concern, most academics have little
control over the administrative choices of law schools and do not foresee
the cost of a legal education decreasing. The professors informed the
subcommittee, however, that many schools are considering, or have already
implemented, loan protection or loan forgiveness plans for their students.
[18]
2. Tenure and Job Security
Law school faculty, particularly untenured professors, expressed
concerns about tenure decisions and job security. Tenure requirements
and promotion standards in law schools are becoming more stringent just
as more women attorneys and attorneys of color are entering the teaching
profession. Moreover, untenured professors remarked that while the tenure
criteria are more rigorous, they also appear to be unclear and subjective.
With regard to communicating the standards for tenure, the focus
group highlighted Northeastern University Law School because each untenured
faculty member has a plan for tenure that is discussed and approved
by the entire faculty. Other law schools do not have an early warning
system for their untenured faculty.
3. Faculty Politics
The subcommittee determined that faculty of all ranks are concerned
about communication and faculty politics. While faculty meetings are
usually civil, many professors are reluctant to be open and candid with
their colleagues. Many decisions are made in the corridors which can
be particularly frustrating to junior faculty members. Sometimes faculties
can be divided on political grounds between small groups of like-minded
faculty. Both tenured and non-tenured professors are concerned about
improving internal communications within law school faculties.
4. Non-Tenure Track Faculty
Because of the competing pressures on law schools to reduce costs
while improving faculty-student ratios and having more personal instruction,
many law schools have begun to hire adjunct and contract faculty. In
some law schools, these adjunct and contract professors provide most
of the research and writing instruction and the clinical teaching. While
many of these professors have long term contracts that are the equivalent
of tenure, others are far less secure and are grossly underpaid. In
addition, adjunct and contract faculty rarely have the research and
writing opportunities of tenure-track faculty and can be treated as
second class citizens in making faculty decisions.
5. Law School Curriculum
The law school faculty members expressed their concerns to the
subcommittee about whether the law school curriculum adequately prepares
law students for the growing challenges of practice. In addition, the
professors noted research interests in law schools today are too divorced
from the problems of practice. Many law schools are hiring professors
to write about esoteric topics. Moreover, the professors observed that
the modes of instruction devised to produce new lawyers with sharp research,
writing and practical skills are labor intensive and expensive and add
to the escalating cost of law school.
On the issues of professionalism and civility in law schools, the
faculty agreed that instruction on civility begins by example. Most
professors felt, however, that generally law students are civil towards
their colleagues and that lack of civility begins after graduation.
Nevertheless, faculty agreed that they should do more to teach and instill
professionalism in law students.
6. Diversity in the Legal Teaching Profession
The subcommittee ascertained that law students are far more diverse
today with a growing number of women and people of color entering law
school. The increasing debt burden incurred by law students, however,
will influence the pool of applicants in the future who can either afford
law school or who will be willing to take on substantial debt. Moreover,
new women attorneys and attorneys of color report back to their former
professors about some of the challenges and obstacles that they are
facing as practicing attorneys. Many professors question whether law
schools can take a leadership role on diversity issues in the legal
profession and better assist students in meeting the challenges of practice.
The professors further noted that while faculty appointments are also
more diverse, few women or attorneys of color have [19]
reached the senior levels in law school faculties. As previously discussed,
the criteria for tenure and promotion have become more stringent just
as more women attorneys and attorneys of color are entering the law
teaching profession. Moreover, law schools are relying more on adjunct
and contract faculty. Accordingly, the subcommittee cautions that law
schools must be careful not to fill these positions only with women
and people of color.
RECOMMENDATIONS
The Task Force recommends that:
1. the BBA encourage a national organization, such as the American
Bar Association, to conduct a comprehensive study of the student debt
issue.
2. the law schools be encouraged to consider implementing loan
forgiveness and loan protection programs to help their students manage
their law school debt burden.
3. the law schools be encouraged to examine their tenure requirements
and to clearly articulate those standards to non-tenured faculty.
4. the law schools be encouraged to support candid communication
among their tenured and non-tenured faculty members.
5. the law schools be encouraged to support their adjunct and contract
faculty members through job security and a fair salary.
6. the law schools be encouraged to examine their curriculum to
meet the challenges of teaching law in a rapidly changing profession.
7. the law schools be encouraged to hire more women attorneys and
attorneys of color to faculty positions.
8. law professors teach professionalism and civility to their students
in all their classes.
SENIOR LAWYERS
Meeting with senior lawyers from a wide variety of firms and areas
of practice, the Senior Lawyers Subcommittee, chaired by William F. Looney,
Jr. and including John J. Curtin, Jr. and Donald G. Leka, focused primarily
on retirement issues and the increasing lack of collegiality and civility
among attorneys that they have witnessed over their careers.
1. Retirement Issues
The senior lawyers reported that a major area of concern is the
lack of structure or plan in place for senior lawyers to be compensated
when they leave their firms. Although this appears to be less of a problem
in large firms where there is generally some type of retirement compensation
plan, lawyers in small firms report that their practices are being taken
over by younger attorneys without any particular plan of compensation
for the senior lawyers. In some instances, these lawyers feel that they
are being squeezed out of their practices.
The subcommittee discovered that there are many different types
of retirement policies among firms and that there are widely differing
financial situations among senior lawyers. Some organizations allow
older attorneys to continue to practice, while other organizations insist
on a rigid retirement age. The group felt that senior lawyers should
be allowed to continue to practice as long as they continue to be productive.
The senior lawyers concluded that it is important for attorneys to address
these retirement issues long before they reach the age of retirement.
2. Civility/Mentoring
The senior lawyers also expressed concern that their experience
and expertise are not being sought by young lawyers. In addition, the
senior lawyers feel that younger lawyers do not deal with one another
(or with senior lawyers) with the same collegiality of a generation
ago. The group suggested that the expanded discovery process and the
fact that discovery generally is con-[20]ducted
without court supervision has contributed to the decline in lawyers'
relationships. The subcommittee concluded that senior lawyers with their
knowledge, experience and expertise could be a valuable asset to the
more junior attorneys and law students who are seeking mentors.
RECOMMENDATIONS
The Task Force recommends that:
1. attorneys begin to focus on career planning issues a
