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Today we place great and often exclusive emphasis on the directly remunerative aspect of the practice of law. After years of resistance, we have accepted the precepts that the legal profession is a trade or business in the traditional sense, and that law firms of all sizes and shapes must be run as such for them to survive. The fly on the wall in a law firm partnership meeting would today be hard-pressed to determine exactly what kind of business is being discussed by the participants. Certainly, competitive pressures weigh heavily on lawyers, who work hard to satisfy existing clients and to obtain new ones, fending off the increasing numbers of lawyers within the profession and the seemingly endless desire of non-lawyer service providers to encroach upon practice areas previously thought to be reserved exclusively to legal practitioners. The competition is therefore necessarily acute with respect to the recruitment and retention of associates, particularly those perceived, rightly or wrongly, to be the “best and brightest” the law schools have to offer. Law firms want to be able to represent that the associates they have chosen to assist in the rendition of legal services to clients are topnotch, so that clients can feel secure having them work on their matters (and paying for their services). Precisely which law students fall into this category has become more a numbers game than anything else. High grades from a top-ranked law school will take a law student very far in the recruiting game. A position with a top-ranked law journal within that school will place that student further ahead of the pack. In a close case, prior job experience might be a factor. Remember, most of these future associates are being evaluated for the firm summer program, third-year recruiting having dwindled substantially, and thus they are being chosen on the basis of first-year grades only, and perhaps their selection to serve on the staff of a law journal. The in-person interview has become a formality. A very strong candidate is not likely to be rejected for a weak interview or for slurping soup at lunch. Conversely, a weak candidate is not likely to secure a position solely on the basis of an interview, and will often not even pass through the screening process. The interview becomes important only for the handful of borderline candidates, and even then it is of limited utility. Honestly, can you really assess the ability of a person to have a successful career as a lawyer in 30 minutes? Law firms do the best they can each year in recruiting from this small pool of applicants, hoping they don’t make too many mistakes, and hoping to retain a reasonable percentage of the capable ones for at least a few years. Why not cast a wider net and recruit at a broader range of law schools? It’s all in the cost-benefit analysis. Sending recruiters to conduct screening interviews, flying candidates to the home office for call-backs, plus the time spent on interviewing and evaluating the students, all require additional dollars. Firms tend to resolve in the negative the question of whether this additional effort is likely to bear sufficient fruit to justify its cost. Thus, there is a relatively small group of law students — small relative to the number who graduate from law school each year — for whom this competition is most frenzied. Many of them go through the interview process accumulating job offers from law firms around the country. How do they choose? What differentiates one firm from another? After all, they have had as little interpersonal contact with the firm as the firm has had with them. Information on firm Web sites and in brochures helps somewhat, as does word of mouth on campus and some underground information sources, but at bottom the employment decision is as much a crapshoot for the fledgling associate as it is for the firm. THE MONEY AND ITS EFFECTS One characteristic that these students evaluate is, not surprisingly, compensation. There has traditionally been a “going rate” paid to first-year associates by major so-called “Wall Street” law firms. These days, however, that salary is paid by a small group of firms that call many streets other than “Wall” their home. These are the firms that want to remain in the top tier of law student desirability. Competition among these firms has driven the “going rate” to unprecedented levels (currently $125,000, plus incentive bonuses), having a substantial direct cost to the firms and necessitating ripple-effect salary increases throughout the associate ranks. Some firms had a difficult decision to make over the past few years. Should they continue to match whatever salary level was set by the most profitable firm, or should they accept “second-tier” status and the accompanying diminution in recruiting power? Those who chose to match, and even those who chose to increase salaries without quite matching the competition, had to make economic sense out of these raises. The firms reasoned that if first-year associates were going to expect compensation packages that exceed that of nearly every federal and state court judge in the country, they were going to have to produce. In years past, it was generally understood that firms lost money on junior associates, who notwithstanding three years of law school still need to learn how to practice law. Training, particularly if done right, costs money, after all. The economics of the practice no longer permits firms to view junior associate salaries as an investment in the future. Thus, associates are expected to generate revenue from the moment they walk in the door. This expectation is communicated to associates largely through billable hour quotas. There are minimum expectations for base salary, and then incentive levels in order to be eligible for year-end bonuses. Associates are presented with a series of billable hour targets that generally begin at 2,000 hours per year, and increase to 2,200, 2,400 and even higher. The overarching emphasis in their lives is on the time sheet. Their value to their firm is measured chiefly in terms of the collections they generate. Put aside for another time the substantial risk that such quotas inevitably lead to overbilling, either because the timekeeper overworks or churns the projects he or she is assigned, or because of out-and-out fraud, the phenomenon of recording hours not actually worked. Let’s look at the effect the economics of the practice is having on the development of the young lawyers of today. They are told that they must work a certain number of hours to justify their existence. As Quintus Arius said in Ben-Hur, “We keep you alive to serve this ship, so row well, and live.” Not quite the Roman galleys, but the point is there nonetheless. They are told, again and again, in word and deed, that their value to the firm is in the dollars the firm collects for their services. The more they work, the more they will be paid. Why should an associate spend time working on a pro bono matter, or participating in the activities of a bar association, or becoming active in community groups or political endeavors? With non-billable hours as scarce as they are, why should they be spent on efforts that will not be recognized by their employers? The billable hour quota is the latest in a series of causes of a substantial diminution in the extent to which many young lawyers devote the remains of their days to nonremunerative activities. It is not the sole cause. It is the culture that was born in the recession of 1990-91, that during the 1990s, with its emphasis on profits and revenues, put the exclamation point on the conversion of a learned profession into a money-getting trade, and that has stunted the development of a generation of lawyers. WHAT ARE THE FIRMS TO DO? What then must we do? The American legal profession has historically played an active, leading role in the development of our free society. We have done so not by billing the most hours of any profession, but by donating our time and expertise to those who could not otherwise afford our services, by representing those with unpopular causes, and by never being afraid to challenge the excesses of governmental power. What we do on an individual case through pro bono activities we can often achieve on a broader scale through the combined voice that bar associations provide. Despite the never-funny lawyer jokes, we have traditionally been among the most respected members of our communities. A generation of lawyers is reaching professional maturity without this inculcation, without the understanding that in addition to serving the interests of clients, unquestionably the core of what our profession exists to do, it is also the obligation of a lawyer to find a way to serve society. Law firms should evaluate their expectations of all of their lawyers, not just the junior associates upon whom the focus is so often placed. Is it agreed that we, as lawyers, have an obligation to serve by virtue of our membership in a venerated, learned profession, that extends beyond those who pay for the service? If we agree on that point, we must take steps to ensure that that obligation is fulfilled by all of our attorneys, from the most senior partner to the newest associate. How do we do this against the backdrop of spiraling salaries and decreasing “free” time? Here are some suggestions: 1. I speak first to senior law firm management. Lead by example. Rekindle the spirit that led you to the practice of law. Chances are that, when you started out, you viewed “The Law” as a calling, not as a great way to earn a lot of money. Think about what you wanted to accomplish when you decided to go to law school. Now promise to set aside just five hours a month to do something for the betterment of the law, the justice system or society. Join a bar association committee. They’re not just social clubs, although networking is an important part of their purpose. Think you know everyone in your field? Statewide? Nationally? Guess again. Can the law, or the process by which it is administered, be improved? Who better than you, an experienced practitioner, to make suggestions that could actually have an impact? You could even provide pro bono service. Oh, you’re a tax lawyer and there isn’t much need for pro bono tax services? Guess again. Sure, pro bono service has traditionally involved work on an individual criminal or civil matter, or spending an evening at a legal clinic. But there are also not-for-profit corporations that need legal services and would welcome yours. Do you have common sense? Then volunteer as a small claims court arbitrator. And don’t tell me you’re too old. Contrary to popular belief, lawyers don’t outgrow pro bono work. The opportunities for lawyers of all ages and practice areas are limitless. Find something that you can do, and do it. You may find it provides a degree of professional fulfillment that might otherwise be missing from your life. 2. Seeing the senior partners in their firms actively engaged in pro bono, bar association and community activities would be a significant incentive to more junior lawyers. They would follow the example set by their leaders, their mentors, and find ways to accommodate their non-remunerative activities. But until that day, firm management should make it clear to all attorneys — by word and by deed — that these activities are important, encouraged, and valued, if not expected. Tell associates that their involvement in nonremunerative activities will be taken into account — positively — in evaluating them as partnership candidates, and then follow through on that undertaking. There are, after all, tangible benefits to having associates participate in these activities. Pro bono matters give them the opportunity to take the lead in representing a client, and often afford them the opportunity to undertake tasks, such as depositions, court appearances and even trials and appellate arguments, that they would not otherwise be assigned at their early stage of development. Bar associations often provide an inexpensive way for associates to fulfill their mandatory continuing legal education requirements, as well as to network with other attorneys (they, unlike you, don’t know everyone they need to know yet) and even to learn new practice areas. Sometimes their activities may even generate positive publicity for the firm. And these are only examples. But putting aside any tangible benefits, participation in these activities should be encouraged because it provides the participants with broader perspective, making them better citizens, better lawyers, and better people. These are positive things that should be valued. 3. You associates are an important part of this dialogue. You must make it clear to firm management that it is important to you, and to your development as professionals, that the firm facilitate your participation in these activities. Remember your leverage in the employer-employee relationship, and insist that the firm establish policies to that effect. Make it important in the recruiting process. Firms historically have listened to the demands of associates and tailored their programs to meet them. Remember, firms struggle to differentiate themselves from one another in terms other than dollars. If it is important to you that you work for a firm that recognizes and facilitates the obligation of lawyers as professionals to engage in public service, it will be important to the firm. 4. Ultimately, it is up to the associate to follow through. You, associate, should set aside at least five hours a month, preferably 10, to devote to pro bono, bar association or community activities. Don’t wait for your firm to provide you with “credit” toward your billable hour quota. You have the time right now. Even with four weeks of vacation, 2,000 hours a year is barely more than a 40-hour work-week. So maybe you achieve a level of professional fulfillment and don’t reach the 2,700 billable hour threshold. Is that a catastrophe? And with your salaries at their current levels, don’t complain that your bar association dues are not reimbursed by your firm. By the way, do you know what first-year dues are in many bar associations? Zero. You can afford that. Can’t seem to find pro bono activities that suit your conservative politics? Don’t want to work for the ACLU? There are plenty of organizations and causes that fall squarely within the definition of pro bono work, yet do not list markedly toward the left. The ultimate point is that there can be no excuses for anyone. It is every lawyer’s obligation to fulfill his or her responsibility as a professional to make some contribution to the betterment of society. We assume that traditional role when we take our oath upon admission to the bar. Finding the best way to do it may be tricky, but it’s not impossible, provided employers and employees work together toward the common goal. Make it an important part of the recruiting process, and a major component of associate development. A generation is at stake. Steven C. Krane, a partner in Proskauer Rose, is president-elect of the New York State Bar Association.

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