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An Interview with Steven Harper, Former Kirkland Partner and Author of ‘The Lawyer Bubble’

If you follow the world of large law firms, then you are probably familiar with the incisive and candid commentary of Steven J. Harper. Over at his blog, The Belly of the Beast, Harper offers excellent insights into the world of Biglaw.

Harper knows so much about that world because he spent his entire legal career in it. He joined Kirkland & Ellis after graduating from Harvard Law School in 1979. He practiced litigation at the firm for about 30 years, until his retirement in 2008, at the early age of 54 (which you can afford to do when you’re an equity partner at a firm as lucrative as K&E).

In addition to blogging, Harper has written four books. I spoke last week with Harper about his latest book, The Lawyer Bubble: A Profession in Crisis (affiliate link), and about his views on the worlds of Biglaw and legal education….

The Lawyer Bubble is a most worthwhile read, both for people already in the legal profession and those thinking about entering it. The book is a clear-eyed, sometimes harsh, but always fair-minded indictment of our deeply troubled profession. The major problems that Harper identifies will not be news to those who have been following the legal profession, but he does a fine job of synthesizing recent developments, analyzing their root causes, and providing sensible solutions. (For additional discussion of and praise for the book, check out the collected editorial reviews and blurbs, from such boldface names as Scott Turow, Bill Henderson, and Deborah Rhode.)

Harper and his book have received a significant amount of media attention, including shout-outs in Bloomberg Businessweek, Washington Monthly (book review), and Salon (book excerpts). And as we previously mentioned, last month Harper wrote a New York Times op-ed about the billable hour (in the wake of the DLA Piper overbilling allegations).

Here are some (condensed and lightly edited) excerpts from my discussion with Steven Harper last week. You can read more about Harper and The Lawyer Bubble by accessing the links collected at the end of this post.

ATL: Congratulations on the book, which is great. What led you to decide to write it?

It grew out of a course I started teaching about six years ago, an undergraduate class at Northwestern called “American Lawyers: Demystifying the Profession.” In the ten years before I retired, I observed increasing levels of unhappiness among attorneys. I started teaching the class to try and work out solutions to the problem.

ATL: And what are the causes of that discontent?

Some of the unhappiness has to do with a failure of expectations. People go to law school thinking they’re going to grow up to be Atticus Finch or Alicia Florrick, and actual practice turns out to be quite different. Real life doesn’t bear much resemblance to such images. I started teaching the class as a way of bridging the gap between expectations and reality.

In teaching the class, I struggled to find a balanced, fair, and complete treatment of the legal profession. So I decided to write this book.

ATL: When did you retire from the practice of law, and how did you make the move to writing?

I went off equity partner status at Kirkland around the end of 2007 or early 2008 — around the time I started teaching and my first book came out. If you asked me ten or 15 years ago if I had a deep desire to write a book, I would have said “not really.” I became an accidental author. I started working on a family history that turned into my first book, Crossing Hoffa: A Teamster’s Story (affiliate link). I found writing rewarding and kept at it.

I had always planned, even in my thirties, not to be one of the lawyers who practices until he dies. Not that there’s anything wrong with that — I know many terrific, talented lawyers who will do just that — but I hoped for myself that I could find something else to try between 50 and 55. I retired from practice and became a full-time writer and part-time educator in that time frame.

My second book was a kind of Tuesdays with Morrie featuring a former professor mine, Richard Leopold, called Straddling Worlds (affiliate link). It came out in January 2008, a few months after my first book. My third book, a law firm novel called The Partnership (affiliate link), came out in the summer of 2010. And now it’s the spring of 2013 and The Lawyer Bubble: A Profession in Crisis (affiliate link) is out.

ATL: Are you working on another book?

I have some ideas, but I haven’t started writing anything yet.

ATL: “Associate” recently showed up at the top of an “unhappiest jobs” list. It sounds from the book like you enjoyed your own time as an associate. Would you say that being an associate is still a good job?

It depends on the expectations someone has going into it. And not all big firms are alike, as you well know.

In general, being an associate at a large firm today is not as pleasant as it was when I was an associate. For people like me who started practicing in the late 1970s or early 1980s, there were no minimum billable hour requirements. It didn’t mean you didn’t work hard, but nobody ever said, “Here’s your minimum of 2000 hours, now go to work.”

The subject of how many hours a lawyer had billed rarely came up when I was reviewed as an associate. I was not a 3000-hour-a-year guy myself. But even when I was chairing the associate review committee in the 1990s, hours came up in only two contexts: if they were really high, or if they were really low. If someone was billing 2700 or 2800 hours, you’d say, “Is this person going to burn themselves out?” And at the other extreme, if someone was billing 1300 or 1400 hours, you’d say, “Is there some issue with this person’s work, such that nobody wants to use them?”

Now things are different. Hours are at many firms the dispositive factor in reviewing associates. At many firms, the more hours you bill, the bigger bonus you get.

ATL: You talk in the book about how hard it is to become an equity partner these days. But many firms, including Kirkland, have large numbers of non-equity partners. They are well-paid, and they don’t have the management and business-generation worries of equity partners. So what’s not to like?

If you’re the sort of person who’s content with that sort of life, there’s nothing wrong at all. Nobody will feel sorry for somebody making several hundred grand a year.

But there’s a more fundamental issue about how people feel about where they work, and how invested they feel in long-term outcomes and long-term stability. To me there’s value in a culture that encourages considerations beyond this year’s profits. Having partners who are true partners makes for a better culture in that partnership.

In 1985, 80 percent of large firms were single-tier partnerships. Now, 80 percent of large firms are two-tier firms. I think there are lots of negative consequences that flow from that.

Kikrland was one of the first firms to have a two-tier partnership. Being non-share partner was a proving period. But now being a non-equity partner at some firms is a place where you sit forever. That can be a demoralizing concept, even if it pays well.

When I was in law school, everyone lived in fear of the “Cravath system”: hire ten or more associates, and only one makes partner. But maybe the Cravath way is best. Cravath has a single-tier partnership and is undoubtedly healthier for it. Other firms have gone off and used different models that are really just ways of maximizing leverage.

Ed. note: For some praise of the Cravath system, see this prior post.

ATL: What are some changes you would make to fix what’s broken about the law firm model?

I would try to get people to realize there is value in thinking beyond this year’s profits per partner and to focusing on broader questions of institutional culture — stability, mentoring, so forth. Ideally firms would have one-tier partnerships and lockstep compensation among equity partners. Otherwise you’ll have this continuing lateral partner frenzy that is tremendously destabilizing. And research, by Bill Henderson and others, shows that relying on lateral hiring is dubious even as a profit-maximizing practice.

The firms with the best stability also have formal mandatory retirement. It’s a check on entrenchment, analogous to term limits. Before lots of firms had mandatory retirement, but then people came to view it as unfair or discriminatory. I think that for a profession like ours, mandatory retirement can be very helpful.

Having mandatory retirement isn’t the same as saying a lawyer can’t practice law. It’s just making room for someone new in the equity partnership. Great lawyers can keep on practicing and get paid, not as equity partners but maybe as salaried individuals. They might get paid a lot even, but at least they wouldn’t be there as a block to equity partnership for younger lawyers.

One of my mentors at Kirkland was Fred Bartlit [who went on to found Bartlit Beck]. Fred is someone who should try cases until he doesn’t want to any more, and he should be compensated fairly for doing so. But there are lots of others who hang on simply because they don’t know what else to do.

ATL: Let’s turn to the second focus of your book, legal education. What would you say to a young person thinking about law school today?

I’d ask them the questions that I ask the students in my class: What do you think being a lawyer means? What is your expectation for the profession? Then you start the harder process of assessing what you know about the law school process, the expense of law school, and whether your own personality is a fit for the kind of law you think you’re interested in. It’s a dual-track process in which prospective students explore their own personalities and preferences.

ATL: What are some changes you would make to fix the law school model?

I would do three things. First, I’d make student loans dischargeable in bankruptcy. There was never a good reason that they weren’t; they don’t belong with child support, alimony, criminal penalties, taxes.

Second, to create greater accountability for law schools, I would allow the bankruptcy court to make a determination if educational debt was the “principal factor” in a bankruptcy. If so, I would allow the federal government to seek compensation from the law school or university. There’s such a stigma associated with bankruptcy that most unemployed graduates probably still wouldn’t do it, but this might change the psychology of law school and university administrators. Right now they function without any accountability at all, other than what you can achieve with public shaming. I don’t think they’re venal people or bad people; they just don’t have economic accountability.

Third, I’d push reality therapy on to prospective law students, to make them assess for sure whether they really want to go into this career.

ATL: Perhaps that’s already happening. What do you make of the substantial dip in law school applications?

You’re still going to have way more applicants than you have seats in law schools. And as the recent employment data shows, in 2012 we had a record number of law school grads, over 46,000. The bubble is continuing to grow. We are an extraordinarily long way from anything that looks like an equilibrium between supply and demand.

ATL: Thanks for taking the time to chat. Congrats again on the book!

The Lawyer Bubble [Amazon (affiliate link)]
The Lawyer Bubble [Steven J. Harper (official website)]
Law school is a sham [Salon (book excerpts)]
Big Law Firms Are in ‘Crisis,’ Retired Lawyer Says [Bloomberg Businessweek]
Bar Examined [Washington Monthly]
Ex-partner in Big Law blogs it all [Chicago Tribune]

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