Back in the day, the practice of law was considered to be a profession first, and a business second. Over the years, there was a great deal of talk about how lawyers had to recognize that the practice of law was also a business, and to become more business-like in their approach. I expect that this had a lot to do with some combination of law firms becoming less profitable and law partners, like many in the corporate sector, becoming greedier.
Nowadays, you don’t hear much about how lawyers have to recognize that they are in business and not just in a profession. I think that this is because lawyers have fully embraced that concept.
It is in this context that I want to hearken back to what partnership was all about when I became a lawyer. At that time, the game plan for lawyers in private practice was pretty clear. You worked ridiculously hard for about seven years, after which the firm would invite you to become a partner. Or not.
If you were not invited to become a partner, you were expected to hang your head in shame and slink out of the firm. The system was called “Up or Out.” You either graduated to partnership or you left the firm. No humiliated reject wanted to stay on at a firm that had rejected them for partnership.
On the other hand, if you were invited to become a partner, you had arrived. You could hold your head up high. You were a success. You were now part of the family. Part of the team. You had won the opportunity to continue to work ridiculously hard until you retired, albeit for a great deal more money.
In the new “business first” context, a lot has changed.
On the one hand, law firms still have to offer partnership to their stars because some lawyers still care about becoming partners and the firms have to hold onto them. Also, the firms need to have enough partners to contribute capital, especially the capital that is required to pay out the retiring partners. On the other hand, law firms do not want to have so many partners that the compensation pie has to be split into too many pieces.
The ‘Up or Out’ system is also a thing of the past, although there are certainly some lawyers who will leave a firm that declines to offer them a partnership. The difference is that nowadays, law firms are often happy to offer a home to lawyers who want to continue to contribute billings but who have no desire to become partners. At the same time, associates have gotten smarter and many of them just do not see the benefit of being partners. These associates are happy to make less money, accept less responsibility and risk, and live a more balanced life.
As a result of these changes, new categories of lawyers have been invented.
There are ‘non-equity’ partners who are really glorified employees who have been given the prestigious title of ‘partner’ and the ability to claim expenses on their tax return that they were not entitled to claim as mere employees. Sometimes these arrangements are a stepping-stone to full partnership. Other times they offer no such path.
There are also “permanent associates” who firms are happy to have around as long as they keep their billings up, but who will never become partners.
Even a so-called ‘full partnership’ in a large firm is less meaningful than it was years ago, because as firms have become much bigger, more and more of the decision-making power has been delegated to small executive groups.
Another change in the profession is that lawyers are much more mobile than they used to be. Whether as associates or partners, they jump from firm to firm for many reasons, almost all of which come down to money. As lawyers jump in and out of partnerships at different firms, the relationships among partners are more transactional and less personal than they were in the old days when people tended to stay put and develop deep relationships with their fellow partners.
Now, those who spend a great deal of time around lawyers know that they like to complain. Most of their complaints are about how tough it is to be a lawyer. And it is indeed tough to be a lawyer, although it is much tougher to be a whole lot of things that do not pay nearly as well, a point which is lost on the vast majority within the profession.
Once they are partners, lawyers like to complain about how hard (and thankless) it is to be partner in a law firm, which is also true. They not only complain among themselves, but they also complain to their associates. Ironically, after complaining for years to their associates about how hard it is to be a partner, they are then sometimes surprised when their associates reject the holy grail of partnership.
I always remember one of my colleagues saying that he had just had enough and that he intended to withdraw as a partner and continue on as an associate. One by one, all of the other partners expressed their intention to do the same. Finally, one of the partners said, “This makes no sense. Someone has to own the place.” That was the end of the discussion. Everyone stayed on as a partner and continued to complain.
I have drawn three conclusions from observing these changes in the relationships between lawyers and the law firms for which they toil.
The first is that being a partner in a law firm is not as great a thing to be as it used to be, as evidenced both by the fact that there are so many more lawyers who do not want to be partners and by the increased number of partners looking for a better situation.
The second is that many lawyers are smarter today than they used to be, and they can see that there is more to life than practicing law. By not becoming a partner, they free up some time to do other, more fulfilling things.
My third conclusion is that with all this jumping around for the best financial deal and lawyers having bought into the mantra that ‘law is a business, not just a profession,’ something has been lost. What has been lost is the personal satisfaction of being part of a team that aspires to achieve something greater than maximizing profits.
I am not sure that lawyers are making more money than they did in the old days, although perhaps if they had not developed a business focus their incomes would have declined substantially. On the other hand, in the old days we did not have lawyers advertising that, “You can ditch your soul-sucking legal job and trade lawyering for a better life” (see: formerlawyer.com), or encouraging lawyers to leave big law to set up a solo practice in order to “Get more freedom and control over your career” (see: https://grubblaw.ca/). When an entire industry has started up to help lawyers move on from an unhappy life, something must be wrong.
This is just a thought, but perhaps the time has come to back off the ‘remember that law is also a business’ thing and get back to thinking that law is supposed to be primarily a noble profession, not a business without a soul.
I would like to think that the pendulum has already swung too far and that a new generation of lawyers will demand that it swing back the other way and settle in a friendlier and more fulfilling place. We are already seeing a bit of that happening with the creation of new firms organized around different principles, but it is by no means clear whether this is the beginning of a re-imagining of the profession or simply the conduct of a few outliers.