ethics of large law firms--responses and reflections, The

Georgetown Journal of Legal Ethics, The, Fall 2002 by Wernz, William J

I. INTRODUCTION

I was introduced to large law firms over twenty-five years ago, through the interviews that I and my wife, Ann Hart Wernz, had with two firms. One of my interviewers, a lawyer of a certain age, apparently believed in the trial-by-fire method that many lawyers favored in that era. He said,

Well, you have done some very interesting things-been a professor of religious studies, worked in the civil rights movement, and clerked for a small plaintiff's personal injury firm. Tell me, what has made you decide to devote the rest of your life to furthering the interests of the moneyed classes?

As I stammered an incoherent reply, he added, so there would be no mistake, "That is what we do here, you know."

When Ann interviewed, she was asked how she would be able to raise our children and still make the firm her primary responsibility. She said that she and I shared child-raising responsibilities and that she hoped that the firm would allow her to work forty hours a week. The partner responded with an avuncular chuckle, "Ann, we would all like to work part time, but the practice of law is not like that."

Ann and I concluded that large firms did not want us and we did not want them. We chose other careers. Ann taught law school, did estate planning for a small firm, worked for a larger firm that accepted forty hours a week or so, and since 1984 has been Trust Counsel at Wells Fargo in a department of over 100 lawyers. I went to work for a ten-lawyer firm, then for the Minnesota Lawyers Board, as Ann and I raised our three children. In 1992, when our youngest child had reached adolescence, I joined Dorsey & Whitney, a law firm that now has over 750 lawyers.

For over twenty years, my practice has centered on lawyer ethics, malpractice and related subjects. My experience as Director of the Lawyers Board mostly involved small law firms, and my current practice, in addition to my in-house duties as ethics partner at Dorsey, involves lawyer-clients from all sorts of backgrounds. From my experience and Ann's, I think I have a good idea of how law has been practiced in firms large and small, and in corporate and government offices, over the last nearly thirty years, at least in Minnesota.

Why did I join a large law firm? Dean Patrick Schiltz, an alumnus and leading critic of large firms, suggests one answer. He maintains that lawyers at large firms are "rapaciously greedy" and that "the defining feature of the legal profession today is obsession with money."2

I admit that the opportunity to pay my children's tuition from current income was an attraction offered by Dorsey employment, although I hope not a rapacious or obsessive one. However, the main attraction for me, and I believe for most of my partners, is not money-even though for lawyers and many others in our society money is important, arguably too important.

Dorsey & Whitney exists to provide excellent service to clients, and to provide the opportunity for its members to achieve professional excellence in the company of, and in some ways even in fellowship with, talented and resourceful colleagues. Our partnership is also based on our desires to meet professional challenges and ambitions-wanting to play in the big leagues-and to build personal relationships. Admittedly, a level of profitability (high to most people, far too low by Wall Street standards) is a sine qua non of the partnership, and there is an ongoing tension between the demands of money-making and our other values.3

Schiltz and Bogus have focused on large law firms, and particularly on ethics issues relating to large law firm money-making, time-keeping and billing practices.6 Literature on professionalism, although it centers on rising incivility, also advances the claim that today's lawyers have become avaricious. The general perspective of the literature is that in the last few decades large firms have led a general decline of the profession into workaholism and money-grubbing. The billable hour is seen as both symbol and engine of the profession's self-destruction.7

Bogus, Schiltz and others also have broader agendas. They tend to romanticize the past as a time when lawyers led balanced lives and billed clients fairly. Bogus veritably sighs for that prelapsarian time, only thirty years ago, when "lawyers took pride in being able to be fair to both the client and themselves, despite their self-interest."8 Schiltz indulges in caricature.9 Bogus and Schiltz tend to diagnose as lawyer maladies problems that are generally characteristic of the profession and even of contemporary American society.

"indictment" of current "open and endemic fraud" has been proven or whether, instead, Schiltz rightly claims that today's lawyers unquestionably deliver more value at a lower price. Fifth, I consider the virtue which I believe is the essential character trait of the large firms I know, the pursuit of excellence, and I also consider, briefly, the pro bono efforts of today's large firms.

II. "LARGE LAW FIRMS" SHOULD NOT BE CONSIDERED AS A MONOLITH