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| Report of the Boston Bar Association Task Force
on Professional Fulfillment
Expectations, Reality and Recommendations
for Change The Boston Bar Association is grateful to the West Group for donating its resources to print this report as a service to the legal profession. Note: For citation purposes, the pagination of the printed report is designated by red brackets [ ]. TASK FORCE ON PROFESSIONAL FULFILLMENT [i]
TABLE OF CONTENTS [ii]
FOREWORD [iii]
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. ReckPresident, 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
Large Law Firm Partners [viii]
Large Law Firm - Associates
Sole Practitioners and Small Firms
In-House Counsel
Public Service
Academia [x]
Senior Lawyers
Law Students and Recent Graduates
Women Attorneys and Attorneys of Color
BOSTON BAR ASSOCIATION REPORT 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
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:
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] 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. 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 PartnershipAlthough 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 ManagementAlthough 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. 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 |