Money = character in New York

I have just read a most disturbing article from the New York Times – Aspiring Lawyer Finds Debt Is Bigger Hurdle Than Bar Exam (http://www.nytimes.com/2009/07/02/business/02lawyer.html).  It seems that Robert Bowman, who worked himself from foster child to law graduate despite having to spend six years in rehab after a tragic accident.  He worked himself through undergraduate school and then to law school, taking out student loans on the way.  Add in some disputed hefty increases in his student loan debt, and suddenly his lenders claimed he owed over $400,000 in student loans.  He certainly hoped he could start hacking away at those student loan debts once he passed the bar and could get a job as a lawyer.  It took him a few tries, but he did pass the New York bar.  However, his dreams of becoming a lawyer were killed by five state appellate judges who determined that his student loans were too substantial and his efforts to repay them too meager for him to be a lawyer.

“Applicant has not made any substantial payments on the loans . . . Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”

Has your jaw dropped as far as mine has?  Let me see . . . AIG, GM, Chrysler (the list goes on) have recently been given billions of taxpayer dollars because they are so far in debt that it is argued that the entire economy will fall apart if they do not get propped up.  Mr. Bowman did not make poor business choices that sent the entire U.S. economy into a tailspin.  He worked hard and got an education.  But in New York, hard work apparently means nothing.  Mr. Bowman is deemed to not have sufficient “character” to be a lawyer.

Let’s not mince words here.  Mr. Bowman is being denied the right to be a lawyer because he is not rich.  If Mr. Bowman had a rich uncle or a trust fund, or  no one would question his character or general fitness to practice law.   He’s not asking for a handout or for a cushy job.  He just wants to be a lawyer.

Is it little wonder that people hate lawyers when the profession can’t even understand the meaning of “character”?

Rethinking how lawyers are employed

It is ironic that the very profession that has had a hand in creating increased legal protections for employees – wage/hour regulations, overtime pay rules, mandatory worker’s compensation coverage, etc. – has done such a poor job of protecting their own. Example, typical lawyers in private practice work far more than 8 hours a day, far more than 40 hours a week, and yet are statutorily excluded from entitlement to overtime pay protection. Why? If an employee drives a truck and is asked to put in several additional hours of work, he or she gets paid time and a half. If an associate in a law firm is asked to stay all night drafting a brief, he does not get paid time and a half. The lawyer is an “exempt” employee, meaning his employer can insist on any number of hours of work for a set salary. Lawyers, most often workaholics by nature, rarely seem to step back and look at the entire picture of compensation vs. work performed.

Consider young law school grad emerging from three years of intensive study and suddenly realizing she has over $100K in student loan debt to pay back. She’s worked hard, very hard, to get where she is and figures that maybe its time to collect the gold ring – a prestigious job (defined as something her family and friends say “oh, wow” to) with a nice paycheck (defined as something that will allow her to trade in her worn out car for a new Lexus and a snazzy new wardrobe). $160K a year? Its a good as a lottery ticket when you are fresh out of school. She’s too enamored by the feeling of being wanted (the law firm must think she’s talented) and the prospect of instant financial success to read the fine print. What must she give the law firm in exchange for the prestige and the paycheck?

Not unlike Ariel in The Little Mermaid, and countless other characters in stories we all know well, she has made the proverbial “deal with the devil.” She got something she wanted, but she must give up something in return and the price is high.

What is the price? What is in the fine print? Let’s start with time. Wage and hour laws across the country define “full-time” as 40 hours a week. A typical associate’s hours? 80/hours a week is not at all uncommon. That is the equivalent of two full-time jobs. So in reality, this young associate has undertaken two $80,000/yr jobs. Wouldn’t one be enough? Aren’t two full-time jobs going to seriously impair one’s ability to, say, spend any quality time with one’s family, participate in a sport or hobby, sleep? Is the money worth it?

Now let’s look at this from the client perspective. Why would a client want to entrust their serious legal matters to a law firm whose associates are overworked, sleep-deprived, and lacking in any work-life balance? Legal work requires sharp, unfatigued, intellect. There is no way that someone who spends 12 hours a day at the office on a regular basis can maintain keen insight at all times. Their brains slow down and don’t work as efficiently, ask anyone neurologist or sleep specialist. So the client is paying for fuzzy-brained lawyers working at a slower mental pace because of sheer fatigue, and billing on an hourly basis.

Seriously, is this the way to run our profession? It’s crazy and, you know what? The clients of the world are figuring it out and demanding a change.  The Association of Corporate Counsel’s new Value Challenge is but one example.

…the ACC Value Challenge is based on the concept that firms can greatly improve the value of what they do, reduce their costs to corporate clients and still maintain strong profitability.

— Michael Roster, Chairman, ACC Value Challenge Steering Committee

I take their challenge seriously, and any law firm who wants to keep their corporate clients ought to do the same.  We need to start with restructuring how lawyers perform their work on a day-to-day basis.  Ensure, by structure and design of working relationships, that a lawyer’s work product for which a client is billed is not from an exhausted associate at 2am.

And clients, corporate clients in particular, need to stop judging and choosing their law firms based on the AmLaw100 and AmLaw200 lists.  Those rankings are based on how much money those firms are able to extract from their clients, and how many billable hours they can extract from their associates, not the quality of work product or the cost efficiency of the work.  It is high time that clients needing legal services start developing a new system and new protocol for evaluating law firms and individual attorneys.   Its also high time for the legal profession to lead the way, one attorney and one law firm at a time, in offering alternative employment arrangements for lawyers, and resulting higher quality legal services to clients.

Why I’m blogging

Several months ago a judge took several lawyers to task about not cooperating with each other and instructed them to “talk to [each other] like human beings” and to not send nasty letters back and forth to each other, etc.  I listened, somewhat bemused, at this veteran-trial-attorney-turned-judge lecturing lawyers about being civil to each other.  “What profession does he think he’s talking to, anyway?” I thought as I left the courtroom, “that is how civil litigators are.”  I should know.  I’ve been a litigator and trial attorney in courts throughout the country for the past 15 years.  Civil litigation is entirely uncivil almost all the time, and if you don’t have a thick skin, you should go do transactional work.

Actually, the attorney interaction that the judge was complaining about that day (yes, as you may have guessed, I was one of the lectured attorneys) was quite mild compared to conduct I see on a regular basis.  Ruffled feathers compared to the more common assault with deadly words and threats.  And the judge seemed to be directing his comments at opposing counsel mostly, just including me to be even-handed about the whole lecture.

I thought I could dismiss the matter from my mind and move on to other things, but his lecture stayed with me.  Why is it that I had grown to accept unprofessional, rude, and sometimes insulting or even threatening conduct from other attorneys, as the accepted norm in my profession?  Why is it that courtrooms are guaranteed to be bloody battlefields where only the sturdiest souls can survive the daily combat?  When I was sworn in as a lawyer, did I agree to such an obvious perversion of justice?

I have been a litigator and trial lawyer for a long time now, almost long enough to lose my soul to a system that is insane in so many ways.  It is not too late, however, for me to reevaluate how I practice law, and reevaluate how the entire legal system and legal profession operates.  Reevaluation, however, is useless without corresponding change.  Over the next year I will be blogging periodically about the legal industry, evaluating its flaws, proposing solutions, and drawing on the strength of other lawyers that have also committed to a change in this industry.  I will be working for change in my sphere of influence and encourage all of my readers to do the same.  Together we can be an unstoppable force for change!

– Melody Kramer