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New Group Brings Together Legal Dept. Managing Attorneys
New York Law Journal
Henry Kennedy is president of a new nonprofit, Managing Attorneys and Clerks Association Inc., composed of managing attorneys and clerks from New York City law firms and legal departments. You don't see them in court or their names in pleadings, but nearly all large firms have managing attorneys and clerks who work behind the scenes to make sure firms meet court deadlines, keep records of litigation and advise attorneys on jurisdiction, civil procedure, court rules and other issues. They are the "lawyers to the lawyers," notes Kennedy, who is managing attorney at Willkie Farr & Gallagher. The most famous managing clerk may be Franklin Delano Roosevelt, who worked at Carter Ledyard & Milburn before entering politics, Kennedy said.
The group includes managing attorneys and clerks from about 110 law firms, corporate legal departments and local government agencies. Members often weigh in on suggested court rules and interact with court officials.
Kennedy has been working in Willkie Farr's managing attorney office since 1973, initially as an assistant managing clerk and then managing clerk. He graduated from Touro College Jacob D. Fuchsberg Law center in 1986.
Q: What prompted the formation of the organization and what is its mandate?
A: In the late 1960s the Managing Attorneys and Clerks Association got its start when two managing attorneys reached out to a dozen other managing attorneys and clerks from the large firms and they began inviting court clerks to lunch. The purpose of the luncheons was to foster a closer relationship among court clerks and the bar and provide a forum for law firms and clerks to discuss issues and exchange ideas relating to practice and procedure. Although the group took on the name Managing Attorneys and Clerks Association, it was an informal group, and with the exception of a small executive committee, lacked any real organizational structure.
As the luncheons grew in size from a dozen attendees to more than 100, so did administrative issues, not the least of which was that we didn't even have our own checkbook. Last summer, with the help of attorneys from one of our member firms, we incorporated as a not-for-profit. We now have bylaws, a board and, finally, our own checking account. Membership is limited to firms, businesses and government entities that have a managing attorney or clerk. In addition to hosting monthly luncheons, we publish a newsletter five times a year, arrange seminars on practice and comment on proposed changes to court rules and procedures.
Q: What is the role of managing attorneys and managing clerks?
A: Managing clerks have existed in firms for a long time as the principal liaison with court clerks and administrators. In the early days, the managing clerk was usually a senior associate who remained in that position for a few years as he made his way up the ladder toward partnership. Our most famous managing clerk was Franklin Roosevelt, governor of New York and later president of the United States. Roosevelt was managing clerk at Carter, Ledyard & Milburn and, I understand, would often reminisce of his days running around the courts in New York. Rumor has it that Roosevelt's briefcase is still in the managing clerk's office at Carter.
After World War II, the position became more permanent and at some firms was opened to non-attorneys. Today, managing attorneys and clerks have a number of roles. We are responsible for maintaining a record of all litigation and court proceedings our firms are involved inthe firm docket. We monitor these cases and are responsible for maintaining the firm's calendardefault is not a term managing attorneys are comfortable with. We provide procedural advice and guidance and we stay abreast of court rule changes. We review court papers and supervise the service and filing of those papers. Finally, and importantly, we mentor attorneys, especially the newer ones, on practice and procedure. In our firms, we are the lawyers to the lawyers.
I recently ran across a New York Times article from 1904 that was headlined: "The Law Office of Today Is Run Like a Vast Corporation" and in that article the managing clerk and his duties were highlighted. The following is an excerpt from that article:
"The managing clerk keeps close tab on all [his firm's] cases. At any time he can tell you just what stage any suit has reached, and can tell you when it will come up again, in what court, on what motion, or for what purpose, and if you give him time to think for a minute or two he probably can tell you all about the action."
And, 109 years later, nothing has changed.
Q: How has technology changed the role of a managing attorney?
A: Technology hasn't changed the role of the managing attorney, but it has given her a number of new tools. Technology typically has not led to managing attorneys' office staff reductions because the efficiencies it has provided have been matched or outpaced by increases in the scope of what our firms rely on us to do.
When I started at Willkie, our case dockets and firm diary were hand-written. With the exception of the copier, there was very little in the way of technologyword processing didn't even existand the courts were even further behind. Court minute books were written in hand and filings could be accomplished only by traveling to the clerk's office. Today, so much is done electronically. In many courts, cases are commenced online and papers are served and filed over the Internet. The benefits are obvious: courts are open 24/7 for filing and document retrieval and service can be completed almost instantly. Lawyers have immediate access to court dockets and documents at any time, almost anywhere in the world. That's the good news. However, this technology presents a host of challenges and in many respects has given us more work to do and more to worry about. Take, for example, the simple task of filing a motion for summary judgment with hundreds of exhibits.
In the old days, you prepared the motion, affidavits and exhibits, made copies, dropped the papers in the mail for service, and went to the courthouse and filed the motion with the clerk. You were done. Today, with electronic filing, you prepare your papers as you did in the old days, but now you need to convert the papers to an electronic format, and then go to a computer and file the papers online. In most courts, each document needs to be filed separately, including each exhibit, and if you have hundreds of them, the process can take literally hours to complete. And with the electronic clerk's office open 24/7, those filings can and often do happen late into the night. In all likelihood you still need to go to court and drop off courtesy copies of the papers. So what a few years ago would have taken an hour to do can now take two or three or more hours to accomplish. And if you make a simple mistake with your e-filing, for instance you choose the wrong filing event, you and everyone connected with that case, including the judge, will receive a notice that your papers have been rejected and need to be re-filed.
It is no secret that many New York managing attorney departments are working longer days and later into the night. In my office, instead of going to court to file papers and check on court calendars and decisions, our clerks spend their days in front of computer screens reviewing hundreds of emails to determine what has been electronically served and filed, and downloading those documents. Has electronic filing made our lives easier? The jury may still be out on that, but what is clear is that the electronic age has made our work more challenging and our positions more stressful.
Q: What challenges lie ahead for managing attorney departments?
A: I would say we are in an era not of "cost cutting" but rather of "cost awareness." Like every other function at a law firm, we need to operate more efficiently, and one of the ways we can do that is by using new technologies. Staying on top of technology in the courts and in our firms is a big challenge and I don't see that changing in the foreseeable future. A day hardly goes by when another court isn't turning to e-filing or a vendor isn't offering a new service to access court information. Just recently the New York Court of Appeals introduced its e-filing system, and there is no question that our four Appellate Division departments will soon follow suit. But what that means is new procedures and new rules. We hope that when that happens, the Appellate Division departments will create one unified electronic filing system that will be in sync with OCA's system and the Court of Appeals. Having myriad e-filing systems within our state court system serves no purpose and only adds to the confusion and frustration practitioners experience with e-filing and to the cost of doing those filings.
Q: Why do the courts consult with managing attorneys for suggestions or recommendations?
A: I certainly can't speak for the courts, but I would venture that courts reach out to us because they appreciate and value our roles and understand that we are a good resource and sounding board, and an effective conduit to conveying changes in rules and procedural requirements. In many respects, our job description and those of court clerks are similar, as are the challenges we face. We both are responsible for tracking thousands of cases, for understanding rules and working in environments of constantly changing technology.
Q: What are some issues your members have weighed in on with the courts?
A: On electronic filing issues, we are regular commentators, both formally and informally. Not too long ago, the New York Court of Appeals asked the bar for comments on rule changes that would implement an electronic filing system. We wrote to give our support and strongly suggested that the court use a web-based system for filing. Just recently we commented on OCA's proposed new rules regarding filing electronic documents as "secure" and the redaction of personal identifying information.
A few years ago, the U.S. District Court for the Southern District proposed that its night deposit box rule be eliminated. We argued that even in this age of electronic filing, the night box continues to serve an important functionwhen the electronic system goes down and filing a paper is time-sensitive, having a drop box for after-hours filing gives our attorneys and clients a great level of comfort.
Q: How did managing attorneys affect the implementation of New York's e-filing rules?
A: For starters, another managing attorney and I served on OCA's Attorney Advisory Committee for Electronic Filing. We both had extensive experience working with the federal courts' ECF systems so we were able to offer practical advice and comments on the proposed rules. The late Amy Vance, who was OCA's point person on e-filing, was in regular contact with both of us as well as with other managing attorneys and clerks at large and small firms. She listened to our ideas and put us to work lobbying New York legislators for changes to the CPLR that would allow for e-filing. I made a few trips to Albany myself. The end result is that New York's e-filing system is good and has been well received by the bar and, I believe, the bench. OCA continues to use us as a resource and we are proud to help in any way we can.
Q: What is the position of managing attorneys on standardizing rules across all New York courts?
A: Our position is simple: we'd love itprovided, of course, that they were the right standardized rules! One of our larger issues, and, it seems to me, an issue for the entire bar and bench is how can we standardize rules or at a minimum standardize where you find them. This is not a new problem but one that has been magnified with electronic filing.
When the federal courts rolled out their e-filing systems, each district and bankruptcy court was given, to a certain degree, the opportunity to write its own rules reflecting existing practices in its courts. This worked fine when only a few courts were electronic. But now, with almost all federal courts electronic and with our firms practicing in many of these courts, before filing a document, we are required to spend a considerable amount of time researching court rules and practices. When we do a filing, we need to ask: Do we need to submit courtesy copies of papers? How must the signature on an electronic document look; does it need an original signature copied or will "s/" suffice? How about the size of the document? What about the format? Do you need to use PDF-A format? Does it have to be text searchable? Is document size a problem? If it is too large, must it be split? Do exhibits get filed with the main document, or are they filed separately? And the list goes on and on. To compound this problem, often the "rules" are not part of the formal court rules, but rather are found in a separate court manual or in the clerk's FAQsFrequently Asked Questions.
We understand that it can be difficult to standardize rules and we appreciate that. But it shouldn't be that difficult to create a standardized rules template that can be used in all federal courts. This would save practitioners an enormous amount of time and reduce the number of "rejection notices" the clerks' offices send out.
Q: Are the managing attorney departments in firms of all sizes? How large is the typical department?
A: Managing attorney and clerk departments range in size from a couple of attorneys/clerks to 20 or more depending, generally, on how many attorneys the department is supporting and the types of tasks the department is responsible for. There is no rule of thumb, but it is not surprising that in those firms where the litigation and bankruptcy departments are growing, the managing attorney department follows suit.
At Willkie, we have me, a managing clerk and four assistant managing clerks in addition to two staff members who are responsible for maintaining our computer systems, running reports and staying abreast of e-filing rule changes. We also have a managing attorney's office in our Washington, D.C., office that is staffed by a managing attorney and two clerks.
Q: What is the career path to becoming a managing attorney or clerk?
A: The career path is probably as varied as there are managing attorneys and clerks. Some come from the private bar or the court system, as either a clerk or a court attorney. Others start out in a managing attorney's office as a clerk and either stay at that firm or go to another firm. In my situation, after college, I attended a summer legal assistant program. Soon after the course ended, I was hired by Willkie, not as a legal assistant but as an assistant managing clerk. At the time, I didn't know what a managing clerk didall I really cared about was the paycheck. But I soon came to enjoy the work and it wasn't too long afterward that I decided to make it my careera 40-year career so far. My predecessor retired as managing clerk after 50 years with the firm and I took his position. I went to law school at night and became the firm's managing attorney.
Q: Would you recommend this as a career to a young attorney? What skills should an attorney possess to grow into a first-rate managing attorney?
A: Yes, but I doubt that anyone starts out wanting to be a managing attorney or clerk; it just happens. Managing attorneys and clerks need a number of skills to be goodattention to detail, love of procedure, and good people skills. As much as the computer has changed the way we work, we still need to interact with people in and out of our offices. But I believe the most important skill, or, better put, character trait, you need to succeed is caringyou need to care about getting it right, and not just once in a while but all the time. This is what being a good managing attorney or clerk is about.
When I started my career, a senior partner offered me a bit of advice. He said in any job you're bound to make mistakes, lots of mistakes. The key, he said, to a successful career was keeping those mistakes small, very small. He was right, and I believe the way to minimize those mistakes starts with caring.
This article originally appeared in the New York Law Journal.