Legal educators are still fantasizing that law firms will create more positions for new lawyers. The latest pipe dream suggests that big firms will “give talented graduates of less prestigious institutions a chance to shine” in residencies that teach lawyering skills.Although the firms will retain only some of the residents, a compassionate bar association will require those firms to “offer stipends to help those residents who don’t make the cut but have debt burdens.”
Law firms, as I’ve suggested before, must find this advice hilarious. Will partners eagerly step forward to train more associates than they need? Are BigLaw firms excited about teaching these extra associates how to handle eviction cases for low-income clients? Are bar members pining to reduce their income to help new lawyers pay off their massive law school debts?
I think not. Law firms are businesses competing in a harsh climate. Law schools vie to land jobs for their graduates, but that’s bush league competition: We only have to worry about jobs for one year, we can create low-paid jobs of our own, and we can play games with the numbers. Law firms compete in the real market, one where the bills have to be paid every year, clients would laugh if you asked them to create some work for you, and playing games with the bottom line is fraud or embezzlement.
For a glimpse of today’s legal market, every law school dean, professor, student, and prospective student should read the 2013 Report on the State of the Legal Market issued by Georgetown Law School’s well regarded centre for the Study of the Legal Profession.
That report combines considerable academic and professional expertise: James W. Jones, the report’s lead author, previously served as managing partner at Arnold & Porter, Vice President and General Counsel of APCO Worldwide, and Managing Director of Hildebrandt International. On the academic side, Georgetown’s Mitt Regan, an expert on the legal profession, contributed to the report. These are people who know about the legal profession, and who draw upon real data collected from real firms.
The report recognises that “since 2008, law firms have cut back significantly on their hiring and have gone through several rounds of lay-offs of both legal and non-legal staff.” Despite those cuts, the firms still suffer from “overcapacity in terms of the number of lawyers available to perform the work at hand.” And the problem isn’t resolving, it’s getting worse: “In the four years since , with demand growth negative to flat, the overcapacity problem has become even more serious.” (p. 16)
What’s the solution? “Firms have . . . begun to move toward more flexible staffing models, expanding their use of non-partner track associates, staff attorneys, and contract lawyers. Going forward, it is likely that firms will remain conservative in their hiring policies, even as demand begins to grow. As a result, firms probably will be relatively smaller in terms of the number of partners and traditional partner-track associates and relatively larger in terms of the number of other lawyers and non-lawyer professionals.” (p. 16)
So, yes, law firms are developing new staffing models. But these are not residencies designed to train new professionals or assist the poor. These are jobs that will help equity partners maintain their profits. And these jobs will not provide more opportunities for “talented graduates of less prestigious institutions” to show their ability. As jobs for conventional partner-track associates continue to decline, even T14 graduates will compete for these new positions–hoping for their “chance to shine.”
Law firms do find one bright spot in today’s legal market: it is the oversupply of lawyers. The Georgetown report recognises this quite candidly: “While excess capacity in the market is certainly not good news for young lawyers or, for that matter, law schools, it provides an environment in which law firms should have the flexibility to redesign their staffing models to respond to client demands. By embracing alternative approaches to staffing–including increased use of staff attorneys and non-partner track associates, contract lawyers, and part-time attorneys–firms can create more efficient and cost effective ways to deliver legal services.” (p. 17)
It’s hard to find a more brutal statement of market reality than that one: the glut of lawyers created by law schools is allowing law firms to hire those graduates on increasingly contingent and unattractive terms. These new jobs are not designed to train new lawyers in skills they can take to other job sites. Once you have worked two years as a back-office document reviewer, what professional skills do you have–other than reviewing documents? These jobs will serve the economic interest of law firms.
And before any legal educators get all huffy about how law firms should recognise their professional obligations rather than simply operating as businesses: How many law faculty are voluntarily taking pay cuts to reduce tuition? How many are contributing substantial amounts to loan-repayment assistance plans? How many are voluntarily changing what they teach, or the time they devote to research, in order to lower the cost of legal education? How many devote 40 hours a year (one week) to serving low-income clients directly? How many spend that time training or supervising other lawyers in providing that service?
There are some professors who do these things, just as there are some law firm partners who forego income to mentor new lawyers. But there aren’t very many. Law schools, just like law firms, have become full-bore businesses. The controlling members of these businesses, equity partners and tenured professors, serve their own interests and maximise their take-home pay.
In a market system, there’s nothing wrong with businesses maximizing profit. The problem, with both law firms and law schools, is that we clothe ourselves in the rhetoric and privileges of a profession while pursuing market goals. As clients have gained the information they need to assert their interests–and new businesses have emerged to serve those interests–it’s our students and new lawyers who pay the price for our duplicity.
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