How Many Hours Would Elihu Root Bill?

Although this is really by way of an update to the immediately preceding post, I think it's worthy of standing on its own because, while it raises essentially the same issue, it approaches it from a sufficiently different perspective that it deserves its own gravity.

A reader who requests anonymity (a request, by the way, that I will universally honor assuming I post the material at all) writes (emphasis supplied):

"Speaking as a junior associate at a mid-sized firm (but with many friends at much larger firms), I think there's another dimension to the issue of associate work-life balance and long-term (or even medium-term) retention that needs to be addressed in order to gain a more complete understanding of how young associate view these issues. Of course many of us are put off by the hours firms expect from us and the difficulty of making partner, but there's also a strong sense, at least among young associates I know, that, all else aside, making partner simply isn't worth it. It's not that my generation is opposed to careers in private practice, it's that we are very much aware of the fact that partners these days tend to work even longer hours than the already hard-working associates.

"Fighting for partnership might be worth it to us if high hours expectations were merely a hazing process through which associates must pass to become a partner (i.e., something akin a medical residency). It also might be worth sticking around to compete in a partnership tournament with long odds if we viewed the brass ring as a prize worth fighting hard for. The problem is that most of us simply don't view BigLaw partnership as worth the price. Sure, it would be nice to make $1 million a year (or more), but if that means getting divorced, never seeing our children, and having no life outside of work, BigLaw won't find many lawyers from my generation interested in fighting for such a "prize." If all we cared about was making as much money as possible, we would have gone into investment banking.

"That said, will firms still be able to find some people willing to pursue partnership under the current model of working as hard as possible to make profits as high as possible? Of course. But they should stop and think about whether those who choose to compete in the tournament (and, therefore, those who ultimately make partner) are really the best of the best, or if they're simply competent masochists willing to put aside their personal lives. Maybe this is exactly what BigLaw wants, because these are precisely the people who will bill the most hours and raise profits ever higher and higher. The clients, however, will eventually catch on and realize that these are not the lawyers they want as partners. Sophisticated corporate clients will figure out not only that the partners of 15 years from now are not necessarily the most talented lawyers capable of producing the highest quality legal work, but also that they are the types of partners most eager to perform unnecessary work for the sake of billing the extra hundred or thousand hours.

"So what can firms do? Create a place for lawyers who want long-term careers in private practice with reasonable hours – and don't relegate them to second-class "of counsel" or "service partner" status within the firm, unless they do not work long enough or flexible enough hours to be responsive to clients when necessary. This will require a reduction in profits per partner, but that's a misleading measure of firms' real profitability that is largely responsible for getting firms into the mess they're in now. Partners who work insane hours should be paid more if their contribution to the bottom line warrants higher pay. That's fine – most people my age who I know would much prefer to make $500,000 and have a life than to make $1.2 million and live at the office. Find a way to make this a real option, and not only will firms retain more associates and clients see a higher quality of legal work, but BigLaw will also go a long way towards addressing the gender gap among partners."

Our correspondent clearly has a point that the "tournament" for partnership resembles, as some have said, "a pie-eating contest where the prize is more pie," and that partners have never worked as hard as they do today—by most measures, every bit as hard as stand-out associates.

I also know, from my own experience as an associate at two BigLaw New York firms, that not all partners served as, shall we say, estimable role models one desperately aspired to emulate.  I presume law is scarcely alone in this suffering from this reality.

But the even more serious question our friend poses for the profession is the one about the quality of lawyers who self-select to remain in, and ultimately win, the partnership tournament.  Are they, as he colorfully puts it, "simply competent masochists?"   How would an Elihu Root, a John J. McCloy, or a Lloyd Cutler fare in today's tournament environment? 

Are we, in other words, knee-capping our future statesmen (and -women) of the bar in their youth?  Or is the passion that the Roots, McCloys, and Cutlers of the world bring to the profession oblivious to the clock, and is our friend's lament about "insane hours" utterly beside the point to the pillars of the profession?