Across my desk a few weeks ago came BigLaw: Money & Meaning in the Modern Law Firm by Mitt Regan and Lisa Rohrer (U. Chicago Press: 2021). (I have known Mitt, a law Professor at Georgetown, for over a decade, and consider him a friend, as well as one of the most astute observers of our industry that can be found.)
Here’s the publisher’s synopsis:
The Great Recession intensified large law firms’ emphasis on financial performance, leading to claims that lawyers in these firms were now guided by business rather than professional values. Based on interviews with more than 250 partners in large firms, Mitt Regan and Lisa H. Rohrer suggest that the reality is much more complex. It is true that large firm hiring, promotion, compensation, and termination policies are more influenced by business considerations than ever before and that firms actively recruit profitable partners from other firms to replace those they regard as unproductive. At the same time, law firm partners continue to seek the non-financial rewards of being members of a distinct profession and are sensitive to whether their firms are committed to providing them. Regan and Rohrer argue that modern firms responding effectively to business demands while credibly affirming the importance of non-financial professional values can create strong cultures that enhance their ability to weather the storms of the modern legal market.
Fair enough, but far from the whole story. As you (well, I to be sure) would expect from Mitt, it’s far more subtle and nuanced.
The book opens with the tale of two lawyers at the same firm, the first of whom started in the mid-1980’s. He recalled going to see the then managing partner and describing his very hectic but somewhat unfocussed activity: accountants’ liability work, trying criminal cases, writing a cert. petition, etc., and the managing partner counseled him “not to worry about generating clients. Just be the best lawyer you can be, serve the profession, and the clients will come to you.”
The second, who had started in the early 2000s, had a very distinct experience: “I thought there [would be] less selling in it. My mom is in sales and I was talking to her and she said, ‘Oh well you’re in sales.’ …I don’t think you really realize that you are in a service industry and you’ve got to be a salesperson.”
And so Mitt and Lisa set out their task:
in this book, we draw on 279 in-depth interviews conducted between 2009 and 2016 with partners in large US law firms to assess the claim that business concerns are eclipsing professional values in law firm practice (p. 4) [and they draw three overarching conclusions]
First is that, while law firms have faced increasing competitive pressures in the last three to four decades, those pressures have significantly intensified since the economic downturn of 2008. [..]
Second, notwithstanding these trends, professional values remain meaningful to many partners as a source of satisfaction in their practices. […] [And third that] sustaining the sort of culture required is easier said than done. (pp. 7-8)
The organizing principle of the book revolves around a structural tension inherent in BigLaw’s economics and culture that any reader of Adam Smith, Esq. will know by heart:
- Firms encourage (and reward, primarily through “origination” credits at comp season) partners to develop new business in the form of clients and matters, allocating individual credit for their efforts;
- But/and firms laud their “collegial, collaborative” cultures and their all-for-one, one-for-all team-oriented client service.
The tension bordering on conflict up to and including enterprise self-destruction is self-evident. What’s best for Me, Inc., piling up individual origination credits that I “own,” is at odds with sharing, hunting and serving in teams, and selflessly delivering up clients I have introduced to the firm to my colleagues and the firm at large, potentially across practice areas and offices that I know essentially nothing about–and, having a classic lawyer personality type, may not want to trust.
I’ve written more than once about the intrinsic centrifugal forces baked into BigLaw’s structure, and there it is laid bare. At one end we have the Platonic Ideal of partnership and at the other we have the “Lawyer Hotel” phenomenon where shared space, furnishings, and utilities are available on a per-annum basis, check in and check out as you please.
As Mitt and Lisa characterize this tension, perhaps more graciously, the conflict has arisen, or certainly intensified, in terms of law as a business vs. law as a profession. They describe their research and exhaustive interviewing as aiming at the question of whether “these features are complementary or antagonistic.” (p. 232)
Bridging the divide, or easing the tension, requires firms to engender a distinctive culture (well beyond the ubiquitous “collegial, collaborative” pap) centered on–my words, not theirs–a concept of stewardship and trusteeship: We, partners at this firm, stand on the shoulders of our forebears, have a distinct and powerful vision of what we’re building here and what this place is all about, and are determined to leave it in better shape than we found it.
Mitt and Lisa introduce and structure this concept as the “Prisoner’s Dilemma” vs. the “Assurance Game.”
- The legendary Prisoner’s Dilemma, a child of John von Neumann and Oskar Morgenstern’s pathbreaking game theory work in the 1940’s at the Institute for Advanced Study in Princeton, requires firms to convince partners that committing to the firm and its overall success will be more remunerative than behaving in a narrow, self-interested way.
- And, concomitantly, firms have to solve the Assurance Game, instilling in partners the belief that their firm upholds classic values of professionalism and disinterested judgment–but not at the price of financial performance.
As they summarize their argument, firms that solve only the Prisoner’s Dilemma (a form of the failure of collective action category) keeps partners loyal only so long as their paycheck benefits, while solving only the Assurance Game results in a group of high-minded colleagues at risk of finding themselves on an economically sinking ship.
This, reasonably sophisticated readers know, poses the precise dilemma our profession/business faces as we emerge from the intensifying pressures exacerbated by the Covid and post-Covid “slingshot” effect. But the force of the book emerges in the extended verbatim, and understandably anonymized, to no loss in power, interviews with partners at firms dealing, capably or ineptly, with these tensions and these challenges.
If you want a roadmap drawn from ground level and at the coal-face about where the core centrifugal/centripetal forces at the heart of BigLaw today collide in the daily lives of those living it, you have found your read.