Steven Harper used to be a happy, satisfied lawyer. As he tells it, he led a "charmed life" in the law, graduating from Harvard as a classmate of John Roberts before spending 30 years as a top-shelf litigator at Kirkland & Ellis. Then he retired early, at age 54, to write, teach, and take an arm’s-length view of his profession. He doesn’t like what he’s seeing. In weekly blog posts on americanlawyer.com and now in a new book, The Lawyer Bubble, Harper sees a profession in crisis. "From law schools to the pinnacle of the profession at America’s most prestigious law firms, unrestrained self-interest—let’s call it greed—has taken key legal institutions to an unfortunate place," he writes. "As leaders of the bar, especially law school deans and many managing partners of the nation’s biggest law firms, focus on the near future, disastrous long-term consequences are becoming apparent."
This is an important and timely book. It’s two books, really. The first is a powerful recitation of how we got into this "unfortunate place," which may be more of a revelation to civilians than to lawyers who have paid attention to their alma mater’s struggles or their firm’s business plans. The second may not be so easy for lawyers to shrug off. It’s a call to remedy the problems he so vividly describes. His answers aren’t neat or in many cases likely. But he’s identified the root problem—and he’s looking at you! "Human decisions created this mess," he writes. "Better human decisions can clean it up."
(Full disclosure: Harper and I are friendly; he quotes my work in the book; and he describes for the uninitiated the role that The American Lawyer and The Am Law 100 played in presenting financial information that proved to have the power to warp the minds of purportedly sensible firms.)
Amid the parade of horribles Harper sets out, his real text is about lawyers and other guardians of ethical behavior who have perverted their cultures. You know the broad outlines: at law schools, a surge in enrollments, exceeded only by a surge in tuition, all made possible by a surge in federal loan money. To those economic factors he adds the outsize and embarrassing influence that the annual law school rankings from U.S. News & World Report had on the behavior of deans. Shameful or silly acts: from lying about admissions standards to faking employment records to hiring grads in temp jobs to, yep, goose their school employment stats.
His takedown of Big Law isn’t prettier, just familiar to readers of this journal. He makes the indisputable point that many law firm managers began running firms with their Am Law 100 numbers in the forefront. This led to (you pick) mindless growth, heartless treatment of colleagues, a depressed workforce, gross pay disparities, and, in some cases, spectacular public failures caused by leaders who believed their own malarkey and by the partners who followed them. For those with short memories, his chapter on the death of Dewey & LeBoeuf is stunning. "The transformation of most big firms has been achieved at the expense of values that don’t come with a metric," Harper charges. "One of those values is a shared sense of purpose that generates the willingness to weather difficult times. Too many firms now expect annual . . . income statements to hold everything together."
For the law schools, Harper has a litany of suggestions worth arguing about. Some are under discussion: Cut enrollments. Change the third-year curriculum. Require accurate employment-record reporting. The most interesting is the least likely to gain traction: Make law school loans eligible for discharge in bankruptcy and, under limited circumstances, allow the federal government to recover the loan losses from the schools themselves. "Until law schools . . . become financially responsible for (student loans) directly, deans will remain removed from meaningful accountability," he concludes.
For big law firms, he has a long list, too. Shed the billable hour: "Clients should have rebelled long ago." Cut leverage. Rethink growth. He proposes a Working Culture Index for each firm that would penalize it as its percentage of lawyers with more than 2,000 billable hours increased. (Clients would pay less when the hours became excessive.)
Ultimately he’s talking about a war over culture. There are no noncombatants here. It’s never too late to stop lying. And, it’s way too late to reverse Big Law’s growth. Your role in all this is clear and present. Harper hopes you choose well.