Monday, May 08, 2006

Lawyers as Legal Heliotropes: Professionalism and the Profession Today

I have just finished writing a draft paper titled, Resurgent Professionalism? Partnership and Professionalism in Global Law Firms. In it I attempt to examine professionalism in the context of global law firms. My argument is that to understand the legal profession and the role of law firms and lawyers in modern society, it's necessary to study both the structure--professional and organizational--of lawyers and the kinds of work they do. The two are interactive and can't meaningfully be divorced from each other. Many students of the legal profession do this, however, which produces partial results. Eliot Freidson's Professional Powers: A Study of the Institutionalization of Knowledge was an inspiring approach to analyzing professionalism in the context of work--it was empirically grounded.

Much of what we take as professional values were born in the 18th and 19th centuries and related to enterprises that were small, artisanal, and that required long apprenticeships helping to inculcate the true ideals. The 21st century is entirely different, especially with globalization. It has forced an expansion of work and geographical coverage that was never envisaged by professionalism.

Law firms such as Baker & McKenzie, Skadden Arps, and Clifford Chance are behemoths that straddle the continents, with more than 3,000 lawyers in them. They are primarily oriented to business, which shows in their own organizational structures. Whereas law firms emphasized the building of long term relationships with clients, firms such as Skadden went all out to create a new business model, one that was based on transactions not relationships. These large law firms are now far more hierarchical and corporate than firms used to be. Collegiality is on the wane. It's understandable: how can several hundred partners scattered around the globe be said "to know each other". It's impossible. The pictures of the Baker & McKenzie partners' meetings in Pioneering a Global Vision: The Story of Baker & McKenzie, by Jon R. Bauman are testament to this. Moreover, Bauman goes into great detail as to how Baker's "The Formula" worked to distribute partners' earnings. It is an "eat what you kill" system with rigorous parameters that was not designed to stimulate collegiality. It seemed to enforce manoeuvres towards hoarding work. (Clifford Chance, however, uses lockstep.) This is in contrast to Russell Baker's original vision of a democratic, global law firm in which all partners would know and respect each other.

At the other end of the spectrum is Wachtell Lipton, a firm that has explicitly aimed to stay small. At 190 lawyers, compared to most it is. It is unique in that it strives for a 1:1 partner/associate ratio, which means, in principle, every associate has a chance of making partner. Yet, like Skadden, they eschew the formation of long term lawyer-client relationships in preference to transactional business. It has the advantage of avoiding too many conflicts of interest. Thus it appears that Wachtell still embodies the earlier values of professionalism that have been lost in the global age.

Let me be clear, I don't want to enshrine 19th century values as a holy grail. Professions were exclusive to those who didn't fit because of gender, ethnicity and more. But to follow MacIntyre's ideas practice should generate internal goods of satisfaction and excellence, not focus on money and power. Professionalism treads a delicate step between the internal and external here.

Certainly, the old ideas of professionalism--except for the fact of doing good work--are absent from the normal run of law firms today. Law firms are far more industrialized in their work techniques and the ways they extract surplus from their associates. And with the dramatic growth in two-tier (or more?) partnerships, the extension of associates' probationary periods, the old tournament model no longer satisfies reality. Collegiality has been usurped by bureaucracy and managerialism, which now means that traditional models of professionalism are outliers rather than the norm.

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