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

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

Before discussing ethics issues pertaining to large law firms, one must consider whether it is useful to speak of all firms over a certain size as one group for purposes of ethics analysis. I think that there is only a limited extent to which all large firms can be lumped together for purposes of describing "the ethics of large law firms." Surveys indicate a very large range of difference among large firms on such matters as billable hours, profits, leverage, and pro bono efforts.10

Among the top 200 American firms by size, the 2001 profits per partner range from the twenty most profitable, all exceeding $1,000,000 (and almost all headquartered in New York), to the twenty least profitable, all $305,000 or less (and typically headquartered in much smaller cities).11 These broad disparities in profits appear to be principally determined by numbers of billable hours and by leverage, the ratio of associates to partners. The largest firms typically have a substantially lower ratio of equity partners to associates and other lawyers in the firm than smaller firms.12 The differences in hourly rates are another factor.13

The average pro bono hours, per lawyer per year, at the 200 largest firms range from over 100 to virtually nil.16 Not only is there great variety among today's large firms' pro bono efforts, today's efforts generally appear to compare favorably with those of decades gone by.

There are forces at work which tend to homogenize large firms, but the homogenization is far from complete or inevitable. Regional firms probably become more alike as they become national and international. When firms grow through merger and lateral hiring, maintaining a genuinely distinctive character will be more challenging. However, laterals select firms on expected compatibility and they are apt to choose firms where the balance of work and leisure seems acceptable. Whatever the exact dynamics, large law firms are not yet a monolithic group. I will be talking here about the law firms I know best, namely those I have advised, represented, investigated or been a member of in Minnesota.

III. LAWYERS AND ETHICS-GENERAL CONSIDERATIONS

Schiltz has rightly emphasized that the category of time has a moral dimension. Choices about how we commit our time are also morally important choices about how we do not spend other time and do not fulfill other commitments or obligations. I agree that most lawyers work too hard and that the trend to work still harder is morally problematic. The trend is also becoming problematic for the future of law firms because fewer associates aspire to a lifetime of work at an emotionally, mentally and psychologically exhausting pace. Law firm identity and continuity will be at risk if firms grow more from lateral hiring than from internal growth.

Schiltz is especially helpful in identifying habits of lawyering as morally crucial, because virtues and vices are habits. Too often legal ethics deals with exotic moral quandaries or debatable applications of the Rules of Professional Conduct, rather than with the daily fare of morality-being kind, paying attention, providing good service and living the kind of homey virtues that Schiltz means to refer to when he says, too broadly, that ethics for lawyers is not much different than ethics for mail carriers and gas station attendants. Virtues and vices are habits that, like occasions of sin, predispose us in morally important ways. I will follow Schiltz's lead in talking mainly about virtues and vices, that is about morally significant habits. I will also discuss "occasions of sin," that is those conditions which predispose us away from the good.