Ethics in Large Law Firms: The Principle of Pragmatism

"The final arbiter of the quality of your work is not the client, the judge, or any external truth, it's the partner you're working for."

I. INTRODUCTION

The environments in which we practice law shape our understandings of what it means to be ethical and professional.2 Our practice environments, most significantly our workplaces, influence the roles we assume vis--vis our clients and the assumptions, values and beliefs that frame our ethical decision-making-in other words, they shape our ethical consciousness.3 As a result, one lawyer can regard as unethical conduct that another lawyer, practicing in another setting, may see as uncontroversially appropriate. Although many scholars have noted the significance of the link between lawyers' workplaces and their ethical consciousness, empirical research exploring that relationship is relatively scarce.4 In this article, I report my preliminary findings from my ongoing empirical investigation of that link.

Using large law firms as my sample, I investigate how bureaucratic legal workplaces "transform lawyers' ethical sights."5 I start with the assumption that we must learn how lawyers "actually experience their work"6 to understand how it influences their ethical consciousness. This is, therefore, an interpretive account of how large-firm lawyers view their work.

Through in-depth interviews with lawyers working in some of the country's largest law firms,71 identify the "set of rules, premiums, and sanctions that [large-firm lawyers] create and re-create" to guide them as they endeavor to survive and advance in their firms. I argue that when large-firm lawyers make decisions in which ethical concerns are implicated, they are likely to make those decisions according to the logic of their firms.9 If I am correct, this has profound consequences for the profession.

Understanding how bureaucratic legal workplaces shape lawyers' ethical consciousness is especially important now, as increasing numbers of American lawyers work in bureaucratic settings including large law firms, "business corporations, government agencies, mass-market legal service chains, and rationalized court systems."10 Among these, I chose to study large law firms because they are quintessential bureaucratic legal workplaces. As they have grown over the last three decades, large firms have become increasingly bureaucratic in structure," mirroring their corporate clients. Unlike corporations and many government agencies that are organized by non-lawyers for other purposes, however, large law firm bureaucracies are organized by lawyers for the sole purpose of providing legal services.

Sociologists have long theorized that bureaucracies shape the thinking of the individuals who work within them in distinctive ways.12 Empirical studies have tested and refined this theory.13 One of the most widely respected of these studies, Robert Jackall's Moral Mazes, The World of Corporate Managers,14 has served as a model for my study of lawyers working in large law firms.15 Jackall concludes that work in American corporate bureaucracies shapes corporate managers' habits of mind in characteristic ways and that those habits of mind, in turn, shape managers' moral consciousness.16

Similarly, based on the first phase of my research, I conclude that work in large law firm bureaucracies shapes lawyers' habits of mind in distinct ways. Large-firm lawyers work in a world where the relevant norms change frequently. Implicit in the opening quote, "The final arbiter of the quality of your work is not the client, the judge, or any external truth, it's the partner you're working for," 17 is the interviewee's understanding that lawyers working in large firms must respond to varying sets of norms in the course of their work. What constitutes high quality work varies depending on the lawyer's supervisor. The proper writing style for one partner may be spare and legalistic while another prefers more literary prose. One partner may prefer to maintain friendly and accommodating relations with opposing counsel, while another adopts reserved and suspicious stances. One partner may want responsive documents produced upon request unless strong arguments exist for withholding them, while another may want documents withheld on any arguably non-frivolous ground unless the other side moves to compel their disclosure.

The degree of variation in the norms at play in large law firm bureaucracies makes the experience of work in large firms fundamentally different from that in small firms and plays a crucial role in shaping large-firm lawyers' unique habit of mind. Although lawyers working in small firms often begin their careers working for other lawyers, and, therefore, must also respond to varying norms, they typically begin working autonomously (without supervision) earlier in their careers than do large-firm lawyers. As a result, small firm lawyers begin selecting their own norms relatively early in their careers.18 In contrast, many large-firm lawyers work for other lawyers, and thus must respond to the varying norms of their supervisors, for much of their careers. Further, as large firms have grown larger and more culturally and geographically diverse and as lawyers move from one firm to another, the norms espoused by the powerful lawyers within these firms have become more varied.

In addition to pleasing the various lawyers who provide them with work, large-firm lawyers (in contrast to small-firm lawyers) must also meet the expectations of a growing group of lawyermanagers in their firms' management hierarchies. The norms espoused by the lawyer-managers who run large firms tend to change with some frequency. For example, firm management may espouse as a norm the ideal that litigators should see themselves as rainmakers. After hiring a consultant, however, firm management may change the prevailing norms to reflect a new strategic plan that envisions litigators as service providers to other practice groups in the firm.

Because norms vary among the powerful partners within a firm and over time, lawyers working in today's large law firms employ a characteristic "choice of norm" rule to guide them.1 Like a choice of law rule that says the law of the state where an auto accident occurs is the source of governing law in a tort claim arising out of the accident, large-firm lawyers' choice of norm rule identifies the source of norms a lawyer should follow in a particular situation if he wants to act in accord with the logic of his firm.

Large-firm lawyers' choice of norm rule reflects the varying norms at play in large firms: the appropriate norms to apply in a given situation are those of the people the lawyer is working for and with at the time.20 Because this choice of norm rule makes the partner or coterie a lawyer is working for at the time the source of norms, the lawyer asks, "What norms would the partner or coterie I am working with follow in this situation?"

The choice of norm rule large-firm lawyers employ is a critical component of the distinctive, "social, cognitive, and evaluative frameworks"21 large-firm lawyers develop to negotiate their careers in large firms. As a consequence, across large firms, lawyers approach their work in characteristic ways. Further, I argue here that large-firm lawyers are likely to approach the moral and ethical dimensions of their work in these same, characteristic waysemploying the same social, cognitive and evaluative frameworks, including the choice of norm rule, they follow in other aspects of their work. I am not suggesting that large-firm lawyers' ethical norms are identical across firms or even within firms. Rather, I argue that the choice of norm rule that shapes large-firm lawyers' approach to moral and ethical issues is likely to be the same across firms.

Because the choice of norm rule in use in large-firm bureaucracies makes the norms lawyers follow highly mutable, large-firm lawyers place great importance on their own ability to discern the norms appropriate to the situation. As a result, their habit of mind22 is to focus on which norms to follow when, rather than on the content of the norms themselves. In other words, the large-firm lawyers' habit of mind is to discern the norm "appropriate" to the situation, not to judge the merits of any given norm. If large-firm lawyers carry this habit of mind into their approach to ethical and moral issues, it will shape their ethical consciousness in very distinct ways: A habit of mind that focuses on identifying what norms others would follow rather than on the content of the norms themselves will "convert principles into guidelines, ethics into etiquette, [and] values into tastes."23 Indeed, in a world where what norms one follows depends on what norms one's superiors would follow, principles can only be guidelines, ethics can only be etiquette, and values can only be tastes.

If other choice of norm rules prevailed in large firms, the proper source of norms with respect to ethical and moral issues might be the applicable code of professional responsibility or a lawyer's own sense of morality and propriety. A lawyer working in a world where the choice of norm rule directs him to consult fixed or internal sources of norms is likely to understand ethics and morals as rooted in principles or values. In contrast, the choice of norm rule and associated habit of mind I found at work in large law firms encourages a consciousness that understands ethics, morals, principles and values as mutable-i.e. as guidelines, etiquette and tastes.

The choice of norm rule I identify at work in large law firms is similar to the evaluative rules that Jackall found managers employ in large corporate bureaucracies. I argue that the choice of norm rule large-firm lawyers follow is a function of the peculiar bureaucratic structure of large law firms described below. If I am correct, the increasing bureaucratization of lawyers' workplaces has significant implications for debates about ethics and professionalism.24

I introduce my argument here as two equations: first, bureaucracy generates a characteristic choice of norm rule; second, this choice of norm rule encourages a morality characterized by organizational pragmatism rather than principled decision-making. I begin this way in an attempt to distill the relationship between large-firm bureaucracies and ethics. However, in my quest for clarity, I have greatly oversimplified the workings of large law firms as social institutions. In describing my empirical findings in Sections IV through VII below, I hope to more accurately reflect the complex, fluid, and richly nuanced workings of the human institutions that are large law firm bureaucracies.

I begin in section II with a description of Robert Jackall's study of managers in large corporations and the role of bureaucracy in shaping managers' moral consciousness. In section III, I review the recent legal scholarship on large law firms. section FV outlines my methodology. In section V, I describe the characteristic social structures of large law firms. section VI describes the conflicts, tensions, incentives, and motivations created as the marketplace exerts pressure on these bureaucracies. Against the backdrop of the structure of large-firm bureaucracies, and the conflicts and tensions created as these bureaucracies compete in the marketplace, I examine in section VII the experience of individual lawyers working in these firms. Through the voices of the large-firm lawyers I interviewed, I describe the organizational logic that guides them as they navigate their way through the complex social terrain of their bureaucracies. Finally, in section VIII, comparing my observations with those of other scholars, I link, in very particular ways, the organizational logic at work in large firms with the ethical consciousness of the lawyers working in them.

II. THE ROLE OF BUREAUCRACY IN SHAPING CORPORATE MANAGERS' ETHICAL CONSCIOUSNESS

In Moral Mazes, The World of Corporate Managers, Robert Jackall explores how bureaucracy shapes corporate managers' moral consciousness.25 He finds that the rules corporate managers develop and follow in their quest "for survival and success are at the heart of what might be called the bureaucratic ethic, a moral code that guides managers through all the dilemmas and vicissitudes that confront them in the big organization."26 Jackall reports on managers in three companies: a chemical company and its parent conglomerate, a large textile company, and a large public relations firm.27 Jackall conducted more than 140 interviews of managers working in these corporations. Through these interviews he identifies:

[t]he actual evaluative rules that managers fashion and follow in their work world, the rules that govern their stances toward and interaction with their superiors, subordinates, and peers; their friends allies and rivals; their business customers and competitors; regulators and legislators; the media; and the specific publics they address and the public at large.29

The "evaluative rules" Jackall describes are among the "experientially constructed ... set of rules, premiums, and sanctions"30 managers create and recreate to guide them through their work lives. He notes that, while managers play a role in "shaping [these rules, premiums, and sanctions], they often experience [them] as an objective set of norms."31

Among the complex set of "evaluative rules" Jackall identifies are what I have labeled "choice of norm" rules. Jackall examines "the particular conceptions of right and wrong, of proper and improper, that underpin those rules"32 and asks "how the social and bureaucratic context of [managers'] work-the warp across which the threads of their careers are stretched-shape their occupational moralities."33 He concludes that bureaucratic work encourages a distinct set of evaluative rules.34 These rules and the habits of mind managers develop as they try to understand and follow them shape corporate managers' moral consciousness in characteristic ways.35 By examining the evaluative rules managers follow and the habits of mind they develop, Jackall provides a rich and highly nuanced account of the role of bureaucracy in shaping corporate managers' moral consciousness.

Jackall begins Moral Mazes, The World of Corporate Managers with a description of the unique characteristics of American corporate bureaucracies.36 He describes them as "hybrids,"37 part Max Weber's "pure form" bureaucracy and part "patrimonial bureaucracy."38 Bureaucracy in its pure form as envisioned by Weber is:

characterized by a kind of legalistic objectivity, by close attention to details and to orders, by adherence to standardized procedures, by thorough written documentation of daily business in well-maintained files, by impartial and fair treatment under law, by a consequent impersonality, and by a separation of offices from persons.39

Although American corporate bureaucracy has incorporated many of the "structural features of [the] pure form [of] bureaucracy," Jackall finds it also has "many of the features of personal loyalty, favoritism, informality and nonlegality that marked crucial aspects of the American historical experience."40 Thus, power in American corporate bureaucracies is personal and, as a result, managers' personal relationships with their superiors are of preeminent importance.41

Once they reach a certain level in the corporate hierarchy, Jackall found that managers do not believe their further advancement will depend on their performance.42 Instead, "managers see success depending principally on meeting social criteria established by the authority and political alignments-that is, by the fealty and alliance structure-and by the ethos and style of the corporation."43 In order to understand those social criteria and make decisions, managers develop the habit of mind of "looking up and looking around."44 They look up to those above them on the corporate ladder and around to those in their various social networks to understand the rules-in-use that guide behavior and decision-making among their superiors and peers.45 They look up and around to ascertain what "public face" 6 to present.47 Thus, managers must "masterf] the social rules that prescribe which mask [public face] to wear on which occasion."48 The public face appropriate in one situation (e.g., in a meeting with one's boss and his/her allies) may not be appropriate in another (e.g., a meeting with managers outside this coterie).

The skill of looking up and around is challenged by the contingent nature of power in large corporations.49 Frequent reorganizations and shake-ups mean that power is constantly being redistributed in corporate bureaucracies.50 New CEOs are anointed and they reorganize to show the financial markets they are aggressively making changes.51 New divisions are bought, existing divisions are reorganized and numerous managers are fired.52 One's boss is assigned a new position. As power changes hands, or as those at the top find it expedient to change the norms in use, managers must recognize when and how the norms, including norms of public face, have changed.53

Successful managers understand the choice of norm rulesthey know whose norms are appropriate to the situation.54 They are also adept at noting a change in the prevailing norms.55 Accordingly, successful managers develop certain characteristic habits of mind: They look up and around, they are flexible and able to adapt their styles as needed, and they pay close attention to perceptions.56 They understand how they need to be perceived and are able to accurately assess how others see them.57

Those who make their way to the highest rungs of the corporate ladder shape the norms that filter down through their organizations.58 For instance, Jackall reports that when "reorganizations in the chemical company brought new circles of managers to power . . . [t]he notion of 'lean, hungry, and aggressive management' became the watchword and the bonhomie of the old regime became dangerous."59 Thus, the style norms in the corporation change to reflect the styles and philosophies of those in power.60 Some of the norms that come from the top may have moral or ethical dimensions.61 For instance, a new CEO may "espouse policies of product responsibility, tying organizational rewards to sustained vigilance over the uses and possible uses to which a product might be put. Such programs thus try to link individual success, reduction of corporate liability, and consumer safety."62 But the norms that come from the top of the corporate hierarchy are subject to the choice of norm rules managers follow.63 Jackall's work suggests that it is these evaluative rules-the rules I have labeled "choice of norm rules," not the norms themselves, that play the crucial role in shaping managers' moral consciousness.64 The choice of norm rule reflects the lack of fixed norms.65 It places a premium on the ability to read the prevailing norms and apply the norms appropriate to the situation.66 Thus, in corporate bureaucracies "morality does not emerge from some set of internally held convictions or principles"67 or even from the norms being generated and disseminated from the top.68 The appropriate norms to apply in a given situation, whether they are style norms or moral norms, are those of "some person, some coterie, some social network, some clique that matters"69 to the manager at that time, in that particular situation.

Jackall describes the fate of a manager in one of the corporations he studied who failed to understand or to follow the choice of norm rules and the reactions of other managers to his plight.70 Brady, an accountant, discovered various financial and accounting irregularities in his company, including bribes paid to foreign officials, doctored invoices, and manipulation of the company's pension fund.71 He attempted to report his discoveries up the ladder and to the company's general counsel over a period of months.72 When Brady refused to ignore the problems after being asked to do so by a colleague sent to "cool things down," he was fired.73 Brady saw his predicament as a moral one.74 He told Jackall:

So what I'm saying is that at bottom, I was in jeopardy of violating my professional code. And I feel you have to stick up for that.... I am frightened of losing respect, my self-respect in particular. And since that was tied with my respect for my profession, the two things were joined together.75

Other managers Jackall interviewed saw Brady's situation as "devoid of moral and ethical content."76 In their view:

[H]e violated the fundamental rules of bureaucratic life .... (1) You never go around your boss. (2) You tell your boss what he wants to hear, even when your boss claims that he wants dissenting views. (3) If your boss wants something dropped, you drop it. (4) You are sensitive to your boss's wishes so that you anticipate what he wants; you don't force him, in other words, to act as boss. (5) Your job is not to report something your boss does not want reported but rather to cover it up.77

Brady refused to follow what I have labeled the choice of norm rule of the corporation, which required him to look up and around to understand what his boss would deem proper conduct and to follow his boss's norms. Instead, he looked to his professional code as the source of norms. Jackall says:

Brady refused to recognize, in the view of the managers I interviewed, that 'truth' is socially defined, not absolute, and that therefore compromise, about anything and everything, is not moral defeat, as Brady seems to feel, but an inevitable fact of organizational life. They see this as the key reason why Brady's bosses did him in. And they too would do him in without any qualms.78

Jackall concludes that the ethos managers in large corporations:

turn principles into guidelines, ethics into etiquette, values into tastes, personal responsibility into an adroitness at public relations and notions of truth into credibility. Corporate managers who become imbued with this ethos pragmatically take their world as they find it and try to make that world work according to its own institutional logic.79

Since an increasing numbers of lawyers work in bureaucratic settings, we must understand whether the growing number of legal bureaucracies shape lawyers' moral consciousnesses in similar ways. Because lawyers and the work they do differ from corporate managers and their work in important ways, we cannot assume large law firm bureaucracies have the same effects. Most notably, lawyers are required to comply with a code of ethics. Further, even large corporate law firms-the legal bureaucracies that have the most in common with, and work for, large corporations-differ from corporate bureaucracies in other significant ways. The CEO of a corporation serves at the will of the board of directors and shareholders. In contrast, although large law firms are now usually managed by one or a small group of powerful partners, those managers serve at the pleasure of those they manage-the other equity partners in the firm. In my study, I set out to learn how the peculiar form of today's large law firm bureaucracies shape the moral consciousness of the lawyers who work in them.

III. THE STUDY OF LARGE LAW FIRMS

I do not begin my study of today's large corporate law firms on a blank slate. As they have grown larger and more bureaucratic, these firms have become a particular focus of study.81 Legal scholars have addressed a number of important theoretical and empirical questions that have deepened our understanding of these workplaces. As yet, however, no one has systematically investigated how the bureaucratic structure of these firms shapes lawyers' ethical consciousness.

Much of the recent scholarship on large law firms is theoretical and views large firms through the lens of law and economics analysis.82 In their seminal study of large firms, Why the Big Get Bigger: The Promotion-to-Partner Tournament and the Growth of Large Law Firms, Marc Galanter and Thomas Palay used law and economic theory to explain the growth and structure of large law firms.83 Galanter and Palay argue that the exponential growth of large law firms over the last century was driven by their structure, which the authors describe as a "promotion-to-partner tournament."84 According to Galanter and Palay, large-firm partners use associates to maximize partners' surplus human capital-their ability to generate more legal work from their relationships with lucrative clients than they can do themselves.85 To maintain the value of their human capital, partners must ensure that associates produce a high volume of quality work.86

Galanter and Palay posit that firms use a promotion-to-partner tournament as a monitoring mechanism to encourage associates to work hard and provide high quality legal services to their clients.87 Partners lose money if they have to spend significant time closely supervising associates' work beyond an initial period.88 By deferring some of the associates' income until partnership and challenging them to compete for a limited number of partnership seats, large firms create incentives for associates to produce a large volume of quality work with little supervision.89 Galanter and Palay argue that the promotion-to-partner tournament necessitates that large firms grow exponentially, because as the number of partners grows, the firm must increase the number of associates to replace those who are promoted to provide the new partners with associates to do their work.90

David Wilkins and G. Mitu Gulati reconceived Galanter and Palay's tournament theory to account for a number of anecdotal and preliminary empirical findings that appeared inconsistent with classic tournament theory.91 In the course of their studies on the role of race in large law firms,92 Wilkins and Gulati find that not all associates participate in the tournament, and that the selection of partners is not based on past performance as a "rank order" tournament would suggest, but on forward-looking criteria.93 They also find that the partnership tournament is not played on a level playing field; associates are tracked and seeded94 from the outset for the coveted training assignments that ensure a group of associates are trained for partner-like work.95 Also, the partners who declare the winners and losers of the promotion are not neutral, i.e., they have a stake in who wins.96 Further, Wilkins and Gulati argue that Galanter and Palay's theory does not recognize the pivotal role human and relational capital play in determining who wins and who loses the tournament.97

A number of other scholars following in this vein employ law and economics theory to analyze other aspects of large law firms, including the role of race in large firms.98 As Wilkins and Gulati note, "[t]here are, however, limitations on the usefulness and reliability of these [law and economic based] accounts. For the most part, this work is theoretical, rather than empirical, often relying on anecdotal evidence from the legal press."99

In contrast, Robert Nelson in Partners with Power, employed the empirical tools of sociology to investigate the structure of large law firms.100 More than fifteen years since its publication, Partners with Power still represents the most thorough and systematic empirical study of large law firms to date. From 1979-1981, Nelson studied four large Chicago law firms; two that were traditional in their structure and two that were bureaucratic.101 In labeling firms as traditional or bureaucratic, Nelson looks at three criteria: (1) policy making and strategic planning, (2) administration and monitoring of data, and (3) the organization and stability of work groups.102 Policy making in traditional firms is "ad hoc and reactive"103 while in bureaucratic firms a "specialized policy making group . . . actively engages in strategic planning."104 Traditional firms do not have full-time managers and do not engage in systematic "monitoring of internal performance measures or financial information,"105 while bureaucratic firms do. And finally, in contrast to traditional firms, bureaucratic firms have "well-defined work groups" with leaders who report up a management ladder.106

Nelson asked why the bureaucratic firms had adopted bureaucratic structures and how they differed from the traditional firms.107 He concluded that the bureaucratization of large firms "as a means of improving service to clients and increasing partnership profits appears to be in the economic self-interest of the client-responsible elite."108 He found that the bureaucratic firms, like the traditional firms, were dominated by a small group of partners who had relationships with the firm's most important clients.109 Thus the firms' adoption of a bureaucratic structure had not changed the essential nature of power in those firms.110 Further, Nelson found that

although work and careers have changed significantly as firms grow and become differentiated, the model of professionalism continues to be the independent practitioner . . . . Individual lawyers choose their roles (the field they work in, the partners they work for, the hours they work) and are ultimately responsible for their personal success or failure in the organization.111

Nelson went on to posit a theory of social change to explain how these firms reconciled their bureaucratic structure with traditional notions of professionalism.112 He argued that professional "values relating to organizational policies arise inside the firm and reflect the managerial ideology of the elite in power."113 While bureaucratic structures clashed with much of the traditional rhetoric of professionalism, those firms that successfully adopted bureaucratic structures reinvented professional ideology to rationalize the structures they imposed.114 An example illustrates his point. The notion that a lawyer was free to choose the field(s) he worked in and to move from field to field as he desired was central to traditional notions of professionalism.115 In one of the bureaucratic Chicago firms Nelson studied, incoming associates were required to join a specific department at the outset rather than explore a variety of practice areas.116 The ideology of the firm espoused by its dominant partners was that professionalism connotes a high degree of competence and competence requires specialization.117 Lawyers cannot produce the high quality professional work their clients demand unless they specialize.118 Accordingly, Nelson concluded that "[professionalism did not determine the organizational practice, but was constructed within each firm according to its particular history and the interests of its most powerful partners."119

Building on Nelson's earlier work in Lawyers' Ideals/Lawyers' Practices, Nelson and David Trubek suggested an interpretive framework for the study of the areas of the legal profession "that integrates studies of structural and organizational changes with studies of the reactions and perceptions of the actors involved in the changing systems."120 They argued that:

[Professional ideals [are] formed partly within the workplace and partly as designed consciously or unconsciously, by lawyers for the promotion of their economic, power and status goals. Thus "ideals" carry within themselves heavy traces of what we have called "structure." But they also can be seen as a set of dispositions that have a logic partially independent of the structures that produce them. They may, therefore, become the object of competition among individual or collective actors who seek to appropriate (or perhaps accommodate) elements of a professional tradition in order to advance a particular mode of professional organization or pursue other objectives.121

Many of the scholarly works discussed above express concern about how the structural changes large law firms have undertaken, and the changes in the markets they serve, affect the ethics of large-firm lawyers.122 The organized bar and the popular legal press have expressed similar concerns.123 In response to some of these concerns, a number of prominent legal and social science scholars working in this area participated in Ethics: Beyond the Rules, a project sponsored by the Litigation Section of the American Bar Association and the American Bar Foundation, designed to study large-firm lawyers' ethics.124 In 1998, the study's authors conducted extensive group and some one-on-one interviews with nineteen lawyers working in large firms in two cities.125 In these interviews, the researchers asked large-firm litigators to talk about their understandings of their roles vis--vis their clients, what it means to act ethically, and their professional ideals.126 In a series of essays published in the Fordham Law Review, the researchers paint a vivid picture of large-firm lawyers' ethics.127 Although the Ethics: Beyond the Rules scholars posit some of the structural and market roots of large-firm lawyers' ethical stances, they do not systematically investigate the link between the structure of lawyers' practice environments and their ethics.128

In this article, I combine my findings about the logic of large law firms with both my preliminary findings about large-firm lawyers' ethics and with the Ethics: Beyond the Rules scholars' data and draw conclusions about the links between the structure of large firms and lawyers' ethical consciousness. I do not posit theories to explain why large firms are structured as they are or how large firms re-make professional ideologies to rationalize their structures. I take the structure of these firms as I find it and ask how that structure affects lawyers' ethical consciousness.

As Nelson and Trubek's proposed interpretive framework for the study of the profession suggests, we need to understand how the structure of lawyers' workplaces affect their perceptions and how lawyers' perceptions, in turn, affect the structures of their workplaces.129 To do this effectively, we must undertake empirical studies capable of capturing this complex and dynamic process. As Robert Gordon noted in 1993:

[T]here is very little as yet written about law firms that gives a good feel for how market and organizational structures, career patterns, professional selfimages, firm cultures, financial pressures, patronage networks and power hierarchies-running from clients to partners and partners to associatescondition how lawyers see their jobs, self-interest, loyalties, obligations, and practical moralities, and how these conceptions play out in their work.130

Unless we understand how careers in bureaucratic law firms shape the ethical approaches of the lawyers working in them, we cannot determine whether the changes in the structure of large firms and the markets they service are a cause for concern, and if they are, how to effectively address them.131

There are several reasons why the sort of interpretive sociological study Jackall undertook in large corporate bureaucracies has not been undertaken in large law firms. First, it is difficult to do. Empirical work of this sort requires access to large-firm lawyers across the country and the time for lengthy, one-on-one interviews. Second, an early attempt in this direction may well have discouraged further study. Erwin Smigel's The Wall Street Lawyer, Professional Organization Man?, published in 1964, was an empirical study of lawyers working in what were large Wall Street law firms in the mid-to-late 1950s.132 Smigel asked whether work in those law firm bureaucracies "breeds conformity and stifles creativity."133 He concluded that, although Wall Street lawyers were "expedient conformit[ists]" in their "nonprofessional styles of life" like dress and residence, they had adopted the norms of the profession which value creativity and independent judgment.134

While Smigel's work was widely accepted and cited outside legal scholarship,135 legal academics roundly rejected his conclusion as suffering from flaws typical of functionalist analysis.136 A number of scholars "criticized these early explanations by arguing that 'professionalism' was merely the label under which law firms pursued their economic self-interest."137 Nelson argued that Smigel "presents an idealized and incomplete model of the social structure of the professional firm."138 Smigel "mistakenly read this form of domination [collegial hierarchy] as a lack of domination."139 Nelson notes that Smigel found fewer rules in the Wall Street firms he studied than he expected given their bureaucratic structure.140 This, Nelson argued, led Smigel to conclude that large firms had no need for extensive rules because large-firm lawyers had "internalized common standards of practice"141 (namely cannons of ethics) and that there was "little need to define the division of labor or to articulate powers attached to different positions in the firm's hierarchy."142 Nelson notes, "In Smigel's conception everyone knows his or her place; there is little conflict, little need to justify the distribution of power and profits."143 Smigel concluded that the collegial organization of the large Wall Street firms he studied allowed them to maintain autonomy from their clients' interest.144

Nelson's empirical findings flatly controvert Smigel's thesis.145 Nelson concluded that as a result of his failure to understand the "system of collgial domination" embedded in large law firms' structure, Smigel underestimated the importance of these hierarchical relationships in understanding large law firms.146 Nelson noted that it is the partners who control the firm's relationships with its most powerful clients who sit atop the firm hierarchy. Based on his research he predicted these partners:

can be expected to have internalized the client's perspective on questions of social and legal policy. In such a collegial hierarchy the interests, indeed, probably the tastes, of clients will be enforced. The resilience of collegial authority in the law firm will have the opposite effect from that posited in the professions literature. Instead of producing an organization that is more autonomous from client interests, collegial authority ensures that even as the organization becomes more specialized internally and moves in the direction of bureaucratic organization, it will remain under the control of clients.147

My empirical research confirms many of the theories and assumptions of Galanter and Palay, and Wilkins and Gulati, about the way large law firms work and about the incentives of the lawyers who work in them.148 Moreover, many of Galanter and Palay's predictions in 1990 about what large firms might look like in the future are borne out by my research.149 Although large firms are exponentially larger and substantially more bureaucratic than they were when Nelson wrote Partners with Power, my research also confirms Nelson's thesis about the nature of power in large law firms.150 My findings are consistent with Nelson's conclusion that the dominant partners in large firms play a crucial role in setting the norms and creating the ideology that rationalizes those norms.151 My study also confirms Nelson's prediction that the benefits of bureaucratization would drive more and more firms to adopt bureaucratic structures.152

By adopting a methodology similar to Jackall's, which has proven useful in providing insight into corporate bureaucracies,153 I will explore how the bureaucracies created by the "partners with power" in today's large firms shape the habits of mind, including the ethical consciousness, of the lawyers who work in them.

Although I take a more sociological approach, my findings are not inconsistent with the law and economics scholarship described above. As Cass Sunstein has argued, "[I]ndividual rationality is a function of social norms. The costs and benefits of action, from the standpoint of individual agents, include the consequences of acting inconsistently with social norms."154 Thus, if one subscribes to rational choice theory, an understanding of large-firm lawyers' choice of norm rules (Sunstein might call them "choice of norm" norms or procedural norms) is necessary for any understanding of the costs and benefits of action.

In addition, I hope that my research makes two new contributions to this body of work. First, I describe the rules large-firm lawyers develop to negotiate the bureaucratic structures developed by the firm's dominant partners. Second, I posit that the rules, including the choice of norm rule, and the habits of mind lawyers develop working in large firms155 are similar to those Jackall identifies in large corporate bureaucracies. Thus, I argue that the rules that guide large-firm lawyers and the habits of mind that follow from these rules are largely a function of large law firms' collegial bureaucratic structure.156 Finally, I argue that the rules and habits of mind that large-firm bureaucracies encourage shape large-firm lawyers' ethical consciousness in distinct and important ways.

IV. METHODOLOGY

Beginning in the spring of 2003,1 began interviewing lawyers working in large law firms. My empirical research is on-going. In this article, I report on the first phase of interviews. This preliminary report of my findings is based on my one-on-one interviews with twenty-two lawyers practicing in ten large law firms. These firms ranged in size from approximately 160 lawyers to over 1,000 lawyers.157 They were located in large cities on the east and west coasts, and in the south. All but five of the lawyers I interviewed were litigators. I conducted all but two of my initial, in-depth interviews in person, spending from an hour and a half to three hours with each lawyer. I conducted follow-up interviews with six of these lawyers, some in person and some by telephone, during which I asked them to interpret the material I was collecting. In total, I conducted thirty interviews.

The lawyers I interviewed included junior and senior associates, salaried non-partnership track lawyers, non-equity, and equity partners. A number of them had management responsibilities in their firms. They included a team leader, several practice group leaders, a department head for a large metropolitan office, a firmwide department head, and a former managing partner. I also interviewed a third year law student who had been a summer associate at a large law firm during the summer of 2003. Sixteen of my interviewees were men and six were women. Two interviewees were Asian-American; one was African-American; all others were Caucasian-Americans.

The lawyers I interviewed were not chosen at random. Instead, I used personal connections to gain access to large-firm lawyers. I asked friends, colleagues, and former colleagues to suggest large-firm lawyers with whom I could speak. Some of these lawyers made initial calls to lawyers they knew and asked whether I could contact them. Others gave me the name of a lawyer and told me to use their names when I introduced myself and my project. Some of the lawyers I interviewed introduced me to still other lawyers. All of the lawyers I interviewed spoke with me on the condition that they and their firms remain anonymous. I have changed all names, and sometimes other identifying information, including in some instances gender information, to protect the identities of those lawyers and their respective firms. With one exception, I found the lawyers I interviewed to be eager to talk about their work and lives in large law firms. I took handwritten notes of my interviews and subsequently typed them myself or had them typed for me.

The sample of lawyers involved in my study is not intended to be statistically representative. However, the twenty-two lawyers I spoke with had diverse professional backgrounds. Some had spent their entire careers in the same firm; some had come to their firms as lateral associates or partners. They also had diverse practice concentrations. Notwithstanding these differences, their geographic diversity, and the range of seniority and managerial responsibilities represented, my in-depth interviews revealed remarkable consistency in these lawyers' experiences of work in large law firms.

Within large firms, I focused my initial research primarily on litigators.158 I did so for two reasons. First, litigators' working ethics represent an exceptionally influential paradigm of legal ethics; non-litigators adopt litigators' adversarial norms even when their work does not involve adversary proceedings.159 As David Luban noted, "Lawyers commonly act as though the standard conception [the duty of a lawyer in an adversary proceeding to zealously represent his client's position] characterizes their relationship with clients even when the representations do not involve the courtroom."160 Thus, understanding how the logic of large law firm bureaucracies shapes litigators' working ethics may indicate how the increasing bureaucratization of legal workplaces shapes the working ethics of non-litigators as well.161 In addition, largefirm litigators are actively engaged in the ongoing discourse-the regular dialogue among plaintiffs' lawyers, defense lawyers, clients and the court-by which litigation ethics are defined and redefined.162 Understanding the organizational influences on largefirm litigators is, therefore, essential to understanding the development of litigation ethics. second, I focused on large-firm litigators because doing so allowed me to build upon data in the Ethics: Beyond the Rules study, which was focused on litigators.163

In conducting these interviews, I tried to understand how these large-firm lawyers viewed and experienced their work. I asked them about their interactions with colleagues within the firm, as well as with clients and adversaries. I asked who succeeds in their firms and why. I also asked them how they make decisions. In response, they told me stories, a number of which are recounted here.164 The social, cognitive and evaluative rules large-firm lawyers develop and live by emerge from these stories. It is these rules that, I argue, are likely shaping lawyers' ethical consciousness.

V. THE SOCIAL STRUCTURE OF LARGE LAW FIRMS

To understand how large-firm lawyers experience their worlds, one must first understand the social structure of large law firms. How is the firm's work organized? Who reports to whom? What kinds of decisions need to be made, and who makes them? Although every firm is unique, and although large-firm lawyers believe that their firms differ substantially in terms of their culture, the structure of the bureaucracies that have developed in these firms is remarkably similar. As noted in Part III above, a number of other scholars have described the general structure of large law firms and referred to many of the specific features of large-firm structure in the course of their work.165 In this section, I describe in some detail the common structural features of the firms I studied in 2003 and 2004. Because I posit that the structure of large firms influences lawyers' ethical consciousness, I endeavor to provide a more comprehensive description of the structure than is contained in much of the earlier scholarship. Most of what I describe here is generally consistent with that scholarship; however, many of the firms I studied have developed more elaborate management bureaucracies than those described in earlier studies.166

All large law firms are made up of partners and associates, and most employ a number of salaried lawyers who are not on the partnership track.167 Of the ten firms I studied, seven have a twotiered partnership, consisting of equity partners and non-equity partners.168 Equity partners own the firm. Non-equity partners are not owners, but typically may vote on all issues that come before the partnership, with the exception of promotion to equity partner. The partners, associates and non-partnership track lawyers in these firms engage in two types of work. First, they provide legal services for the firm's clients, and second, to varying degrees, they contribute to managing the firm itself. In my research, I studied how large law firms structure both the legal work lawyers perform for clients, and the work of managing the business of the firm.

A. The Structure of Litigation Work in Large Law Firms

Litigation work in large firms is organized hierarchically around cases, with the lawyer responsible for the relationship with the client at the top of the hierarchy. A client will hire a lawyer to handle a lawsuit. That lawyer may supervise work on the case himself or he may assign management of the case to a trusted colleague, a partner, or senior associate.169 I refer to the lawyer who manages the case as the "case manager." The number of other lawyers assigned to the case will vary depending on the complexity and stakes involved. A complex, high stakes case may require four, five, or more lawyers, while a simple case may require only the case manager and one or two junior lawyers. The lawyer initially hired by the client, the case manager (if not the lawyer who brought the work in), and the lawyers working for them on a case make up the case hierarchy. These case hierarchies are independent in the sense that partners outside the case hierarchy do not question or otherwise monitor how a case manager and his team handle a case.

Within the case hierarchy, the case manager is primarily responsible for contact with the client, and he supervises the work of junior lawyers on the case. Typically, the case manager decides major strategy questions and appears at all significant court proceedings. The junior lawyers on the case research legal issues and write memos summarizing their findings; they draft briefs; they draft discovery requests; and they respond to the other party's discovery requests. They may also take and defend depositions and prepare experts. In this process, some case managers are very "hands-on" and review and revise every document drafted by the lawyers who work for them. Other case managers are less directive, while still demanding that junior lawyers' work meet their expectations.

Litigation partners and senior associates who do not bring clients into the firm, must form alliances with one, or more, of the firm's powerful partners with important client relationships who can provide them with work. The lawyers with important client relationships who sit at the top of the case hierarchies are colloquially referred to as "rainmakers," "queen bees," "originators," and/or "finders." Often a lawyer who does not have clients of his own is assigned to manage a case for a client of another lawyer in the firm. If this case manager has strong client relationship and case management skills, he may be able to increase the amount of work coming from the client. For instance, the client may give him more of its litigation work. Lawyers with these skills are sometimes referred to as "binders" because they cement and expand relationships with existing clients. The best binders form such strong relationships with clients that if they leave their firms, some clients may move with them.

Working for the finders and binders are the "minders."170 Minders may be senior associates learning how to manage cases and clients. A minder might also be a non-equity partner with good legal skills who has not yet demonstrated the ability to form strong enough relationships with clients to expand the business coming from the client. Until these lawyers can develop their own client relationships, they are entirely dependent on finders and binders at the firm for work, and thus, for their job security. In all of the firms I studied, minders' billable hours were tracked and compared and billable hour expectations were significant.

Some minders never develop into binders or finders. At some firms, these lawyers may be promoted to non-equity partner and maintain that status indefinitely. At others, they may be employed as "counsel" or "staff attorney" or in some other non-partner status position. At still other firms, lawyers who cannot find or bind work have a limited tenure and are forced out at the time of the non-equity partner or the equity partner election, if not before. Notwithstanding the differences in the prospects for minders among large firms, in every firm I studied, minders were viewed as easily replaceable.

While the structure of litigation work described here is not new, complex management bureaucracies have been superimposed on these case hierarchies relatively recently.171 The intersection of the structure of legal work in large firms and the new business structures that have been imposed on them is profitability. Those partners at the top of the case hierarchies, who maintain relationships with the firms' most lucrative clients, have power in the growing bureaucracies that manage large law firms today.172 As one lawyer put it, profitability is the "coin of the realm" in today's large law firm bureaucracies. Only the most profitable finders and binders will have what another of the lawyers I interviewed referred to as the "moral authority" to be elected to, and successfully maintain, leading roles in these new management bureaucracies.

B. The Structure of the Business Bureaucracy of the Large Law Firm

In Partners with Power, Nelson identified the defining features of a bureaucratic law firm. First, bureaucratic firms have "a specialized policy-making group that actively engages in strategic planning."173 Second, these firms have "a developed administrative component consisting of a managing partner and a mechanism for collecting and analyzing data on the financial performance of individual lawyers and work groups."174 Third, bureaucratic firms have "well-defined work groups (usually taking the form of departments) with recognized heads who supervise the group and report to the central policy-making group."175

All of the firms involved in my study meet Nelson's criteria. First, all have a policy-making group made up of the managing partner(s),176 often the department heads, or a subset of them, and several other powerful "client-responsible"177 partners in the firm. These partners form one or more managing committees.178 The title of these committees varies from firm to firm. As Nelson predicted,179 a primary responsibility of the managing partner(s) and the managing committee(s) that assist him is strategic planning. Many firms hire consultants to aid managers in this process. Against the backdrop of the strategic plan, the managing partner and managing committee(s) make decisions about mergers and acquisitions, associate hiring, who makes non-equity partner and equity partner, whether to de-equitize a partner, conflicts of interest, and the criteria for compensation.

In most of the firms I studied, the partnership retains authority to vote to approve decisions about who makes partner, but this vote seems to be a formality in most large firms where many partners do not know one another, much less all the candidates for nonequity and equity partner. In some of the smaller large firms I studied, the equity partners maintain some greater degree of control over compensation decisions by electing a compensation committee to make compensation decisions or recommendations. However, senior management usually plays a significant role in designing the criteria for compensation. Although the equity partners typically sign off on mergers and acquisitions, senior management does the strategic planning to determine whether the firm should consider merger and does the due diligence required to evaluate a proposed merger. Senior management then goes to the equity partnership with a recommendation about merger and the partnership accepts or rejects their proposal.

In some firms, many of the most profitable partners sit on the committees that make the most significant decisions affecting the firm. Even if they are not on those committees, however, the managing partner(s) and the lawyer-managers working with them must have "buy-in" (meaning support) from those highly profitable partners to wield the influence necessary to obtain approval from the partnership for mergers, reformulations of the compensation criteria, and other significant changes.180

Second, in keeping with Nelson's criteria, all of the firms I studied have established elaborate mechanisms for tracking the profitability of individual lawyers. Today, partners are evaluated principally on the profitability of the work they manage rather than the hours they bill. Firms keep data on the hours worked on a case, the fees,183 billed to the client, the fees actually collected (known in some firms as the "realization" rate), the time required to collect fees, and the overhead chargeable to the partner. Data on each partner are tracked and compared with other partners' numbers. A number of firms also track the profitability of practice groups.184

Finally, consistent with Nelson's criteria, in all of the firms I studied, lawyers are organized by specialty into well defined work groups most often referred to as practice groups. In many firms, these practice groups are coming to be viewed as individual "profit centers." All lawyers in the firm are members of one or more practice groups.185 Some firms subdivide practice groups into narrower areas of specialization, often referred to as teams. Lawyers may be members of multiple teams. The practice groups are usually grouped into larger departments. A firm may have three departments: Litigation, Business, and Real Estate. The litigation department will consist of a number of practice groups organized by specialty and sometimes with reference to the industry served. A lawyer who specializes in securities litigation may be a member of the securities litigation team, within the business litigation practice group, which is a part of the litigation department. All ten of the firms I studied have offices in more than one city and the practice group organization described above transcends geography.

Each firm has developed multi-layered hierarchies of lawyermanagers under the managing partner and the management committee, who manage the departments and practice groups. The titles of the lawyers who manage practice groups vary from firm to firm: for example, "leader," "chair," or "head."186 These practice group leaders typically report to their department heads, who report to the managing partner(s) and/or managing committees.187

Practice group leaders' management authority often impinges significantly on the autonomy of the lawyers working within the group. For instance, practice group leaders are typically gatekeepers for the work of the practice group. They must approve any new work a lawyer wants to bring into the group by criteria relating to the type of work and the fee arrangements proposed. Although at the time of my interviews, none of the firms I studied paid lawyers according to the profitability of their practice group, the profitability of practice groups is a crucial factor in the competition for resources among practice groups. For example, management is unlikely to recommend elevating non-equity partners to equity partner in practice groups that are not profitable. Similarly, management may not assign new associates to less profitable practice groups. Consequently, practice group leaders watch the profitability of their groups closely and have an incentive to refuse to allow a lawyer in the group to take on work they believe will not be sufficiently profitable.

In addition, practice group leaders generally control the practice group's resources (human and non human) and decide how to distribute those resources within the group. The resources controlled by the practice group leaders vary somewhat from firm to firm. Generally, they control the budget for equipment and for conferences. In many firms, they also assign associates to work on cases or select the lawyer who will allocate work to associates. Thus, when a partner needs an associate to work on a case, he generally must ask the practice group leader or work allocator to assign an associate. If the partner approaches the associate himself about working on a case, he usually obtains the practice group leader's or work allocator's, formal or informal, acquiescence to the assignment. In addition, practice group leaders are sometimes in a position to select the lawyers within the group who will participate in "client pitches," and thus, who will have an opportunity to share the credit for obtaining a new client.188

Practice group leaders also play a role in the evaluation of lawyers within the group. In some firms, the practice group leader coordinates the regular evaluation of associates within the group. In most firms, associates and non-equity partners need the support of their practice group leaders to be promoted.

Practice group leaders serve as the group's official liaison with firm management. So, for instance, when a practice group seeks resources (e.g., when the group wants to hire new associates, paralegals, or staff, or have associates elevated to partner) it is typically the practice group leader who makes the group's case to senior management. In order to garner these resources, a practice group leader must ensure that their group is profitable and that the group is highly valued in the firm's strategic plan. Often, only those practice groups that are profitable, and/or have a primary place in the strategic plan, can expect their associates to make partner and their non-equity partners to become equity partners.

In addition, practice group leaders advocate for lawyers in their groups when management has to act to avoid conflicts of interest. While conflict checks are not new, as firms have grown, conflicts of interest have become more common and often pit partners or practice groups against one another. Each group wants to take on the new work to improve its profitability. When a conflict cannot be waived and the firm has to choose what work to pursue, decisions about which client to take and which to turn away are made at the highest levels of firm management. Senior management typically makes these decisions by reference to profitability and the strategic plan. Practice group leaders are often involved in making the case to firm management that the work their groups want to take on fits within the firm's strategic plan.

Unlike the managing partner, practice group leaders are not necessarily the most profitable lawyers in the group. In many firms, a number of practice group leaders are young equity partners, who are perceived as rising stars in terms of profitability, and as having the people skills that will enable them to manage partners, associates, and any factions within their practice groups.189 The power actually exercised by practice group leaders varies greatly from practice group to practice group and from firm to firm.190 Some practice group leaders are proactive managers and leaders. In other practice groups, the most powerful equity partners in the group are not appointed leader because they lack management skills. Even so, in some cases these partners refuse to allow anyone else to make decisions of any consequence. In these groups, the job of practice group leader is largely ministerial, i.e., keeping track of data and passing information up and down the ladder. The role that the practice group leader plays in a given group can have significant consequences for lawyers working within the group.191

Although a powerful practice group leader may limit the autonomy of many lawyers within the group, profitable partners may be able to purchase a degree of autonomy that others in the group cannot. For instance, while a firm may officially require all partners to prepare a business plan, a practice group leader may ignore the requirement for a very profitable partner, or a highly profitable partner may be able to charge a client a lower hourly rate than other partners would be permitted to charge for a new matter. Lawyers at the highest levels of management identify one of the central tensions in large firms today as whether management is able to control decisions in the areas outlined above, i.e., whether management can decline to follow the wishes of a significant partner and still maintain power.

The power of the managers of today's large law firm bureaucracies described above has created a whole new fealty ladder that lawyers within the firm must learn to climb. In addition to negotiating the hierarchies inherent in the structure of the legal work of the firm, lawyers in large firms now must also negotiate multiple layers of relatively complex management bureaucracies.192

C. Conflicts and Tensions, Incentives and Motivations

The pressure of the profitability imperative on these large-firm bureaucracies creates the central conflicts, tensions, incentives, and motivations affecting large-firm lawyers. Changes in the market for corporate legal services have been widely discussed in the legal scholarship.193 As large corporations are hiring in-house counsel, more of a corporation's routine legal work is done in-house.194 Large corporations view the outside legal services they purchase as a commodity.195 They typically enter the legal marketplace looking for services on a project by project, case by case basis196 or they may hire one firm to do all of a particular type of legal work.197 For example, a corporation might hire one, or a few firms, to handle its entire products liability defense. Corporations shop for firms to do this work, and a number of firms may compete for the business. Many firms have opened offices in multiple cities in an attempt to make themselves attractive to large corporations with a need for legal services in many regions of the country.198 As a result, firms no longer "own" the work they do because there is always a competitor waiting in the wings trying to steal the client away.

Further, firms' relationships with their clients are often built on personal relationships with in-house lawyers who face uncertainty themselves. A former managing partner of a large national firm explained:

It is very hard to "own" business today. In-house counsel who is your friend loses his job. Now you need to scramble for work. There were many emails within the firm where a lawyer was asking if anyone knew of job for Joe X [who just lost his inhouse position]. If you can find Joe an in-house position, you can secure work [for yourself and the firm]-if not, you're out of luck.

Even if a partner's relationship with a client is secure, he faces contingencies within his firm. For instance, firm management may decide to increase the firm's billing rates beyond what a partner's clients are willing to pay. This partner must either find new clients or resign and take his existing clients to a firm that charges lower rates.

As corporate clients have become less loyal to the firms they hire, lawyers have become less loyal to the firms that employ them.199 When large firms had long-term, stable relationships with their clients, a retiring senior partner could "hand down" or "bequeath" a client to a more junior partner.200 The ability to pass a client down the generations encouraged strong loyalties among lawyers in a firm. Because most large firms do not own work today, junior lawyers cannot count on inheriting work from their elders; they must think differently about their careers. As a former managing partner explained, "Today, a lawyer needs to build skills. Yesterday, a lawyer needed to build a practice. A lawyer today is more of a hired gun, less the owner of a small business."

While these changes were occurring, the popular legal press was born,201 and the American Lawyer began reporting firms' "profits per partner."202 As a result, lawyers in large firms can, and do, compare what they earn to what they think lawyers in comparable firms are earning and may change firms if they think they can make more money or have access to more resources.203

To attract profitable laterals to their firms, management strives to keep the firm's profits per partner number high. To do this, managers must keep the number of equity partners small. This creates another of the primary tensions in large firms. Most equity partners in large firms rely on non-equity partners or senior associates to manage their cases for them. To keep those lawyers motivated, equity partners need to be able to hold out a realistic possibility that these lawyers will be elected equity partners. However, as the pressure grows to keep the equity partnership small, the odds of making equity partner in the large law firms I studied, and in large firms across the country, have become far worse.204

The lowered odds of making equity partner create a competition among practice groups, and sometimes between non-equity partners within practice groups, for a limited number of equity partnership seats. Profitability and management's strategic plan are key determinants in this competition. For instance, the strategic plan may call for the firm to position itself as specializing in providing legal services for the financial services industry. Management will devote resources, marketing expenditures, new hires, and equity partnership seats to those practice groups that service that industry. Because the products liability practice group does not serve the financial services industry, lawyers in that group are unlikely to be promoted to equity partner.

In addition, even the most successful partners in large firms face contingencies and uncertainty they did not face thirty years ago. In all of the firms I studied, there was talk of de-equitizing partners who had not been profitable for a number of years in order to keep the firm's profits per partner number up.205 An equity partner explained, "All firms have dead wood,20 some are more successful at cleaning [it] out than others .... The firm has to have a carrot and a stick to keep people in line." An equity partner in another firm agreed, "[The firm needs to] cut out the dogs. Get rid of the partner whose practice has died. Every two to three years [the firm needs to] look closely and make the hard decisions-look at production versus salary. Nip the thing in the bud and deequitize the couch potatoes." Many of the lawyers I interviewed reported that their firms had already de-equitized partners, and others suggested that de-equitizing was imminent.

VI. THE WORLD OF LARGE-FIRM LITIGATORS

Large-firm lawyers develop stated and unstated rules-what sociologists would call "rules-in-use"-to negotiate the uncertainties, conflicts, and tensions created by the bureaucracies in which they work. These rules-in-use guide their decisions about whom to work for, how to behave, how to deal with clients and adversaries, and what legal and professional judgments to make. Among these rules-in-use is what I refer to as a choice of norm rule. The rulesin-use at work in large law firms, including the choice of norm rule, shape the way large-firm lawyers think, what sociologists call their "habits of mind."207 The rules-in-use and habits of mind at work in large firms are evident in lawyers' stories about their experiences in their firms.

When asked who succeeds and advances in large law firm bureaucracies and why,208 lawyers talked about understanding what is expected of them and meeting those expectations. For lawyers who do not generate their own business, this means understanding what the lawyers above them in the case hierarchy expect.209 These lawyers must know how the lawyers who supervise them expect work to be done and expect them to behave in any given situation. With the exception of those lawyers who are so profitable as to be able to purchase substantial autonomy, large-firm lawyers must also understand their lawyer-managers' expectations. Understanding what those above you want is crucial for promotion to non-equity and to equity partner. Understanding what firm management and peers expect is also a key ingredient for success in the battle for resources among equity partners and practice groups.

When they speak about expectations, large-firm lawyers are talking about "norms."210 Some of the norms lawyers must understand and follow are shared by lawyers across the firm; others are not. When individual partners or groups of lawyers within the firm do not espouse or follow the same norms, large-firm lawyers employ a choice of norm rule. Across all of the large firms I studied, the choice of norm rule lawyers applied was the same: understand and follow the expectations/norms that the lawyer or lawyers who matter at the moment would want you to follow in the situation. When I asked large-firm lawyers to describe what is expected of them and how they meet those expectations, first and foremost, they spoke about "being available" to the lawyers with and for whom they work.

A. The Importance of "Being Available "

In negotiating the case hierarchy, lawyers who work for other lawyers must understand that their supervisors are their primary "clients." Supervising lawyers expect "service" from associates in the same way clients expect service from their lawyers. In fact, one lawyer referred to the lawyers she works for in her firm as "internal clients." All of the lawyers I interviewed spoke about the necessity of being available to other lawyers and to their clients.

For lawyers who do not generate their own business, "being available" means not turning down assignments. As a result, lawyers in the country's largest firms work long hours when their groups have abundant work. When asked how associates succeed, an equity partner said, "You have to be available. You can't say no." A successful fifth year associate noted:

I have never turned work down. Actually, I turned down work once after a huge arbitration where I billed 1,000 hours in three months. I needed a vacation or I was going to have a nervous breakdown. I told the partner I would do the work when I got back.

A senior associate explains that expectations about being available often remain unstated:

Some associates don't understand or don't care what is expected. I leave my Blackberry211 on vibrate at night. One time I was working with [a partner in another department] on a matter. At two a.m., I'm asleep in bed and my Blackberry goes off. It was this partner e-mailing me from the office. I got up and e-mailed a response. This went on for several nights. James [the equity partner who is this associate's mentor] never asks explicitly for this, but I know he wants it too. He doesn't say he expects it, but he wants me to return his e-mails over the weekend. He tells me that he likes that I have never turned him down when he asks for something.

Even an astute summer associate quickly becomes aware that expectations about availability are often unstated, and if stated, that the stated expectations may, in fact, conflict with actual expectations.

The rhetoric coming from the firm to summer associates was that quality of life was very important. We were told that if associates worked too many hours, the firm would lock the door to their offices and tell them that they could not come in.212 But when you looked at who was successful it was the people who were working long hours.

No partner at [the firm] would ever say "you need to work this weekend," but the people who were succeeding were working weekends. Whenever partners mentioned associates favorably, they mentioned those who were working incredibly long hours. The people who were making it, the associates a partner would mention at a meeting-"Jeff did a great job on this"-were the highest billers among the associates. The "go to" associates never said no to an assignment. These were the people who were first in, in the morning, and last out at night.

Superiors also expect the lawyers who work for them to be responsive to clients' needs "24/7." Many of the lawyers I interviewed routinely gave their clients their home and cell phone numbers and carried a wireless hand held device for sending and receiving e-mails.213 It is not only associates who work long hours in large law firms. One partner explained, "[T]he hours don't get any better for partners; partners have even more pressure than associates do."

The hours do not get better for partners because other lawyers also expect partners to be available to them. Many litigators, including some partners, spend a portion of their time managing litigation for clients of partners in other practice areas. For example, a corporate partner may ask a litigation partner to handle a lawsuit for a corporate client. Because these litigators do not have the primary relationship with the client, and the corporate partner is providing the litigator with work, the litigator needs to meet the expectations of the corporate partner, as well as the client, to maintain this "feeder" relationship. An equity partner related a conversation she had with one of her partners who was "fed up" with meeting his partners' expectations:

We walked out of the building one night, he told me he was going to stop working for this [group of lawyers in the firm] and go back to more generalized work in his area. He said he was [fifty-five] and couldn't keep doing what he was doing. He said the partners [in the practice group he serviced] were jerks to him, often called him on Friday night at five and said "oh sorry, I forgot we need an opinion by Monday morning." He had no autonomy and no home life. He realized that moving to more generalized work would mean a demotion in status and probably pay, [but] he wanted to make the move. He [said] he could not do this for another ten years.

This partner was an equity partner with very specialized expertise, and he did almost all of his work for partners in other practice areas.

In contrast, a profitable equity partner who generates substantial business has far greater latitude to pick and choose when and to whom within the firm he sacrifices his time. An equity partner, Will, described his response to Jeff, an equity partner whose book of business had evaporated in the last couple of years:

If he called me two years ago and said I need you in LA next week, I would have been in LA the following week. Today if he calls and asks me to go to LA next week, I look at my calendar. If I am not interested in going for my own reasons and I see my daughter has a soccer tournament next week, I will tell him "I am really sorry but my daughter has a tournament." Two years ago, I would have missed my daughter's tournament.

Because Jeff was no longer particularly relevant to Will, the choice of norm rule requiring Will to meet the expectations of those who "matter" did not require Will to go out of his way to meet Jeff's expectations.

Equity partners must also be available to their partners to garner firm resources when they need or want them. One equity partner describes this as building a "goodwill bank" with his partners. He drew on this goodwill bank when he wanted one of the lawyers who worked for him selected for equity partner, or if his practice declined and he needed his partners to give him time to rebuild it before they significantly reduced his compensation or de-equitized him. Asked how he builds goodwill, this partner said "it is really about not saying no."

Increasingly, as the firm's bureaucracy grows, lawyers in large firms must also be available to the lawyer-managers to do the "business" work of the firm. Lawyers must be willing to do increasing amounts of non-billable work ranging from work on firm committees, or participating in client pitches, to helping prepare firm marketing materials. Even partners are expected to devote time to the non-billable work of the firm, and unless they are so profitable that they have significant autonomy, they must meet those expectations. Not all lawyers recognize the import of these expectations. As a team leader explained:

As a manager my "bullshit meter" is always way up. The people I manage are litigators; they are advocates. But some are all talk. People can smell these folks a mile away. These are the people who say, "Pick me, pick me" and never follow through. These are people who are assigned to do a client pitch; they volunteer to take on an action item in preparation for the pitch and never do it. These people die and they don't understand why, they think they are stars, well liked. I say, "Don't give me happy talk, do something."

Some partners are sufficiently profitable to purchase a degree of autonomy within the firm, and as a result, may not have to meet all of management's expectations. For example, two profitable partners reported that they had not prepared the individual partner business plans their respective firms' management required of all partners. Neither partner was chastised for not preparing a business plan.214 While their practice group leaders apparently elected not to push this issue with these partners, both lawyers reported that less profitable partners in their groups were not excused from this obligation.

The expectations about what kinds of work a lawyer needs to be available to perform differ from firm to firm, from practice group to practice group, and often from partner to partner. Because expectations about what kind of work a lawyer should spend his time on vary, choice of norm rules come into play. An equity partner noted, "A junior lawyer may think the partner wants him to bill 2,500 hours a year, [but] knowing what is expected also means understanding that in reality that partner would like to see that lawyer bill 2,200 hours and spend 300 hours chairing an ABA committee." A lawyer must recognize and understand these varying expectations and meet them.

Lawyers in large firms trade being available for a steady stream of work for support in their quest for advancement and for support in the inevitable competition for firm resources. Partners who have relationships with powerful clients see a lawyer's willingness to be available as a sign of loyalty, and they reward that loyalty with more work. In addition, says one equity partner, "[p]artners ... try to take care of people who have been loyal to them by helping them get elevated to partner. They look for people who have been loyal to them and . . . who won't compete with them."

In contrast, a lawyer who is not seen as sufficiently available may lose a source of work and damage his chances of advancement. An equity partner described the negative reaction of a partner she was working for when he thought she was misleading him about being available:215

If you are not responsive to [the partners you service] you are at risk. If you are not there, partners and clients find someone else, and you are out. [I'll give you an example.] I disabled the function on my Blackberry that says "This message is courtesy of Comcast" at the bottom of every e-mail you send [indicating that the e-mail was sent from a "Blackberry," thus not from the lawyer in her office.] One of the partners I was working for e-mailed me while I was at a meeting outside the office. I got the message on my Blackberry and responded. He sent back an e-mail asking "Are you in the office?" I told him no. When I got back to the office and saw this partner, he implied that I was being deceptive by turning off the Comcast message.

She explained that she disabled the Comcast message because "clients want to think you are always available to them. If they know you are replying from out of the office, but you are not out [working] on something for them, they don't like it." The partner seemed reassured, but this lawyer saw her partner's reaction as evidence that she must create the perception that she is always available if she does not want her partner to "find someone else."

Having a strong relationship with the finders and binders a lawyer works for is also essential to surviving the occasional, inevitable mistake. All of the lawyers I spoke with agreed that every lawyer makes mistakes. Substantive mistakes range from missing a deadline, to producing documents that could have been withheld, to forgetting to shepardize cases. Whether a mistake is fatal to a lawyer's career depends, in part, on the strength of his relationship with the lawyer supervising him.

When a junior lawyer makes a mistake, the lawyers I interviewed agreed that the supervising partner rarely blames the mistake on the junior lawyer when communicating with the client. More often, the partner takes responsibility for the mistake. For example, one lawyer says:

I've never heard of a partner hanging an associate out to dry. Mistakes stay within the group working on the case. You don't tell other partners about them, you don't tell the client if you don't have to, that a mistake has been made. If you can, you smooth it over. The client doesn't want to know that the associate has enough reign to make these kinds of mistakes.

And when an associate has a strong relationship with the supervising partner, mistakes may matter less. As a fifth year associate notes:

I've made two mistakes. First, I filed an affidavit without understanding what was involved in the case. I made a mistake in another case. I [sent] opposing counsel privileged documents in the discovery process ... I disclosed a document to opposing counsel that had attorney handwriting on it so it could have been claimed as privileged. These are the kind of mistakes that make you physically ill.

This associate felt certain these mistakes would not be used against her because she had very strong relationships with the supervising partners involved.216

Associates must also show their loyalty by not revealing partners' mistakes. An equity partner explains, "I don't want someone who is backstabbing me. I had an associate who worked for me . . . who would then go work for another partner and tell him what I screwed up. Why do I need that?" If a junior lawyer has been sufficiently loyal to partners in the firm to develop strong relationships with them, those partners may also be willing to use their influence to advocate for his promotion to partner.

B. The Criteria for Partnership-the Invisible and Moving Bar

When large-firm lawyers speak about their work, the quest for partnership-who makes it and who does not and why-is a central concern. Associates are preoccupied with their own chances for making partner and measure their chances against their peers' chances. Partners are concerned about whether their protgs will make partner. The habits of mind lawyers develop in response to the partnership tournament-the intense focus on managing perceptions and the premium on the ability to adapt-play an important role in shaping their ethical consciousness.

States one attorney, "[t]o make partner you must have a champion for your file. If your mentor does not say anything negative, but does not give you momentum, you are dead." For an equity partner to be willing to champion a lawyer's file, that lawyer must have demonstrated his loyalty to the partner by being available and by "knowing what is wanted and giving it." A partner who decides to champion his loyalist's file will expend goodwill in the effort. For example, one equity partner I interviewed reported that he had just received a call from David, another equity partner, asking him to support the election of Susan to equity partner. The partner I spoke with believed David was calling every equity partner in a firm of more than 700 lawyers, asking them to support Susan. As large firms grow larger, the influence of each equity partner is diluted, meaning there are fewer partners who are profitable enough to demand that their loyalists be made equity partner.

Most large firms have established committees to evaluate candidates for promotion to non-equity and equity partner. These committees make recommendations to firm management and/or directly to the partnership. Members of these committees come from different practice areas and often from different regions of the country. As a result, the candidate may know few or none of the members of the committee who will evaluate him for partnership. The criteria these committees use to evaluate candidates are often vague or largely unstated and are constantly changing. As a lawyer who has been working at a firm for fifteen years and has not made partner says, "The thinking at [the firm] has become that just being a good lawyer and doing a good job for seven to nine years is not enough. What is enough is a matter of speculation." Even a recently elected equity partner claims, "Having just been elevated to equity partner, I have no idea what the criteria are."217

All of the lawyers I spoke with agreed that being a good lawyer is not enough to make equity partner in today's large firms, and in a number of firms, it is also not enough to make non-equity partner.218 Large firms view good lawyers as expendable. As one equity partner put it, "You can't swing a dead cat in New York without hitting a good lawyer." By the time a lawyer is being considered for partner, "being a good lawyer is off the table," meaning the "good lawyer" criterion has been met, and other criteria will be the deciding factors. Now that fewer and fewer partners have the power to demand that their candidates be promoted to equity partner, the enthusiastic support of one or more equity partners is frequently not enough. When pressed to identify the other criteria that determine who makes partner, lawyers repeatedly spoke about the necessity of managing appearances and perceptions.

Perceptions have become increasingly important in large firms because, as large firms grow, lawyers within these firms have less direct, personal knowledge about other lawyers in their firms. Partners often know relatively little about many of their partners and they do not know many of the associates and laterals coming into their firms. As Wilkins and Gulati note, even when an associate works for a partner, the partner often has little time to closely monitor the associate's work.219 Wilkins and Gulati further state: "[i]n situations in which quality judgments depend on a complex evaluation of an employee's technical competence, thoroughness, and judgment (in addition to results), a firm would have to retrace a good deal of the employee's actual decision-making process before it could reach an accurate assessment about performance."220

Wilkins and Gulati argue that because close monitoring of associates' work is prohibitively expensive, large firms have little information on which to base determinations about which associates will receive coveted training assignments. ' As a consequence, they argue firms tend to rely on readily observable signals (for instance law school status, class rank, prestigious clerkships, etc.) to make these decisions.222 When decisions are being made without more accurate information, Wilkins and Gulati argue that stereotypes and bias are more likely to impact decision-making. My research indicates that the lack of information in large law firms leads to another important phenomenon: Large-firm lawyers rely on perceptions to make judgments about one another. As a consequence, large-firm lawyers must understand how they need to be perceived in order to compete successfully for promotion.

1. Managing Perceptions

From their first days at the firm, associates learn to "look up and look around."224 A fifth year associate assigned to the committee in charge of summer associates explained:

I give the summer associates advice when they come in. I tell them "figure out who the superstars are, look at how they behave and copy them." I give them names of people who are superstars. I say, "Dress like them, watch their behavior at firm functions and with clients, copy them."

Moreover, lawyers must understand that they may need to vary their public faces225 depending on the situation. For example, a former summer associate described Jim, a "superstar" among associates at his firm:

It became clear that the good associates developed a partner face, when they talked to the partners they were different than when they talked to other people. [For instance, when Jim] sat down and talked to [associates] it was like sitting in a high school locker room. However, when he talked to a partner he was a completely different person and the switch was totally natural; he didn't seem to have to think about it, he just moved into it naturally. The associates loved this guy, he was succeeding but he was one of them. The partners also loved this guy, it seemed like he was always at the firm, always available .... I was in [Jim's] office at one point when a partner called him asking him to work on another project and he said to [the partner] "I'm really busy, can you tell me more about this project" and he would thereby create the impression that he was busy but that he would take on this project to work with this partner because he really liked working with him. I don't think that [Jim] was all that busy when he said this, however, this was totally natural to him, it wasn't as if he was scheming.

A fifth year associate contrasts the public face her firm expects her to adopt with adversaries, the public face clients expect her to adopt, and the perceptions she needs to create when dealing with her superiors in the firm. She explains:

To make partner in litigation you need to be seen as really aggressive. Your partners need to know that you are not going to be pushed around or bullied out there .... The client wants to know that you won't be pushed around; that you will do what you need to, to defend them. You have to create the impression that you are looking out for the client in every way. Internally, [inside the firm] you need to be a yes person.

Not only must these lawyers be able to create contradictory perceptions-being aggressive and a "yes person"-at times they must also project a public face that belies their reality. For example, an associate tells the following story:

The partner said you run this case, Claire; "I will be hands off but then he would call and say "how can you have done X?" He knew nothing about the case but was calling the shots from the sidelines, from the bleachers really. He was going to try the case, but he knew nothing about it. I went to [my mentor] and asked him what I could do to get this partner involved. He gave me some useful advice. But basically I had to run with the ball and give the impression that I could do that, that I could run the case. The other partners in the department knew he wasn't giving me any help. If I had let on that I was panicking, it would have ruined my reputation with all of the other partners.

Perceptions are created early and can be hard to change. A lawyer who has been passed over for partner several times notes:

One thing has become apparent. It is difficult to come up for partner after seven to ten years at a firm. If you've been there straight through, whatever mistakes you've made [and your early insecurities] are rattling around back there. If you come in [to the firm] as a fifth year, you can start over; create a perception of yourself as a superstar.

In addition to appearing confident, to be promoted, a lawyer in a large-firm must be perceived as "somebody who looks like they'd be able to develop clients." At the seven-to-nine year mark-when firms are deciding whether to promote associates to non-equity partner-most lawyers will not have generated significant business from the Fortune 500 companies that large law firms service today. Consequently, firms make decisions about promotion to non-equity partner based on perceptions about who will be able to generate that kind of business in the future.226 In some firms, the decision about promotion to equity partner is still largely based on perceptions about the ability to generate or bind substantial business. In other firms, in order to be promoted to equity partner, lawyers must have a track record of either substantial business generation or significant expansion of business and be perceived as able to generate or bind more business.227

Perhaps most importantly, to be promoted, a lawyer must be perceived as understanding the need to create the right perceptions. Lawyers who do not understand what perceptions they need to create, or even recognize that they need to worry about how they are perceived, are not acting in accordance with their firm's organizational logic-the socially constructed rules, premiums, and sanctions that lawyers create to guide their behavior.

A litigation department head gives examples of lawyers who, in his view, are able to create the necessary perceptions to be elected equity partner and those who are not. He describes a meeting where four non-equity partners met with him and the managing partner of the firm to discuss a difficult issue:

I can look down the table and tell you who will make it and who won't. You know it when you see it, the type of person who will be "accretive." The first lawyer is the smartest person in the room. She will only make equity partner if she has a very strong political rabbi.228 She will never be able to instill confidence in a client. A client will never look at her and think "she will take care of me." She will always need a translator who can communicate her advice to clients. The next guy is not quite as smart and has the same problem. The third guy at the table is another [dissent reader] but he has pretensions of worldliness. When he talks, he leans into the conference table. It's as if someone told him that "players lean in" when they speak. Who knows, maybe this guy will make it. Sometimes if you wear the shoes long enough they fit. The last guy at the table is the complete natural. He is self possessed, entirely articulate, only speaks when he has something to say, not to hear himself talk. When he talks, no one interrupts him and he adds something new. I'd bet dollars to donuts this guy will be an equity partner within a few years.

Thus, creating the right perceptions for promotion requires understanding what public face a partner is expected to adopt in a given situation. A lawyer must be skilled in reading situations and understanding the public face called for at a given time and place in order to successfully navigate the road to advancement in a large-firm. Although the non-equity partner with "pretensions of worldliness" is not able to wear the public face comfortably at this point, in the department head's view, he has a greater chance of making equity partner than the first two lawyers because he, at least, understands the need to create a public face appropriate to the situation. The "natural" not only understands this, he is able to do it seamlessly.229

The department head sees these same four lawyers' approaches to an issue about a discrepancy in pay-their understanding or lack of understanding of the etiquette required in the situation-as indicative of their suitability for promotion. One department head told me:

When I met with them individually before this meeting, [the first three lawyers at the table] whined about the disparity in pay. The "natural" says to me, "I'm upset and you can write down that I am upset, but tell the guys at the top, I'll take a $50,000 pay cut if they will give me first chair in a trial for a Fortune 50 client. I can make a career out of that." This guy sees the macro.

[He] is not a management problem-I don't have to manage this guy. The dissent readers are the problem. I have to manage them .... You have to bring the world to these guys. They don't understand it themselves."

For the department head, the question for promotion purposes was not whether any of these four lawyers was ready to try a case for a Fortune 50 client, but which of them knew it was appropriate in response to a pay discrepancy issue to project a public face of confidence and eagerness. In this way, large-firm litigators routinely equate appearances with substance. Their habit of mind is to attend to, and make crucial judgments on, the basis of perceptions.

This department head, and other lawyers I interviewed who are skilled at reading expectations, expressed significant frustration with lawyers who do not recognize the need to create the right perceptions and/or are not able to read expectations about what public face is appropriate in a given situation. Their failure to understand the logic of their firms makes them unqualified for promotion. These lawyers are at best nave, and at worst, "management problems" because they will not understand why they are not advancing and are likely to become dissatisfied with their stagnated careers. But even those lawyers who can read expectations and manage their public faces accordingly face uncertainty because what is expected always changes.

2. Paradigm Shifts and the Premium on the Ability to Change

Expectations often change as new lawyers take over positions of power within management or when the lawyers in power decide to change the strategic plan. Changes in the strategic plan may prompt changes in the rhetoric used in the firm. For instance, one lawyer noted that management at his firm stressed "total quality client service." This was the "buzz phrase" in his firm. In a later interview with another lawyer in the same firm, it became apparent that, after hiring a consulting firm, firm management had decided to focus on branding certain practice groups, and that "branding" was the new buzz phrase. Many firms employ consultants to assist them in formulating their strategic plans.230 These consultants sell advice about marketing and management strategies that they claim will make firms successful. A former managing partner explains:

Consultants claim to have information no one else has and this is what they sell. The firms are looking for the "Promised Land" and the consultants tell them they've been to the top of the mountain and seen what no one else has seen. The firms could do all of this themselves, there is no magic to it.

Armed with a consultant's advice, management has "credibility" when it makes a decision to promote one practice group over another, or to reward one activity more generously than another in the firm's compensation formula. A couple of years later, consultants will inevitably come back with new information and advice, changing the strategic plan and associated expectations. In other words, as the strategic plan changes, management's norms often change.

Shifts in the strategic plan can have enormous consequences for lawyers trying to advance in large firms. A non-equity partner in his thirteenth year at his firm describes the "paradigm shifts" that have complicated his quest for equity partnership at his firm. He explains:

During my first four years at the firm, there were two categories of lawyers at the firm; the people who brought in the work and the people who did the work. There was a paradigm shift [somewhere between] my five to ten year mark. Then the idea du jour was "everyone needs to bring in business." Everything was about marketing. "Everyone needs to become a rainmaker." If you didn't, you were looked on negatively or forced out. I focused on rainmaking. I'm a good schmoozer. I brought in $400K as a [young] associate one year. This was more than some of the litigation partners were bringing in. [Firm management] would ask me to be on panels for seminars for associates about rainmaking. I was [held up as an example,] well regarded.

In the last two to three years the idea du jour has been "driving work." Litigators are supposed to expand the business coming from existing clients (usually clients of other departments). Now we are being told "don't waste time rainmaking; litigators can't generate business." Now you need to be the "go to guy" for a corporate guy who needs a litigator. [Now I'm in a difficult position]. I haven't worked on establishing relationships within the firm and I don't want to be working for [a corporate partner]. I like autonomy. Every time the paradigm shifts it sends me into a tailspin.

This lawyer attributed this latest paradigm shift to a change in firm management and a subsequent change in the strategic plan. The firm had recently merged with a smaller litigation boutique. The leading lawyer in the boutique firm had a large and very profitable client base and was made head of litigation as part of the merger agreement. When he became department head, the expectations for litigators in the firm changed.

[The new head of litigation] says marketing is "bullshit." He sat me down and said, "What are you doing?" He told me that in all his years of practice he has never marketed. He made himself the "go to guy" for all the corporate people. He says "litigators can't generate business; they must be driving business." He told me he has buy in from senior people in the firm on this, so a litigator can qualify for equity partner by expanding business and compensation will also reflect the value of this activity.

Assuming a lawyer is able to keep up with his firm's paradigm shifts, to be promoted, he also needs to be lucky.

3. Luck-the Trump Card

To be promoted in large law firms today, a lawyer must be in the right place at the right time. The relative status of the lawyer's practice group at the time he is being considered for non-equity and equity partner will be a deciding factor in promotion decisions. As a seventh year associate at a large national firm puts it, to make partner, "[Y]ou need to be a good lawyer, you need to know what [partners] want from you and give it to them, and you need to be in a hot practice group." A practice group is "hot" when it is busy, profitable, and has a place in the firm's strategic plan.

The same associate noted that the hot practice group can change rapidly. He identified Mergers and Acquisitions, Corporate Finance and Venture Capital as three practice groups that had been hot, but had suffered recent reversals of fortune because of changes in the financial markets that would make it difficult, if not impossible, for associates in those groups to make partner at the time of our interview.231 Changes in the firm's strategic plan may also affect which practice group is hot in a firm at any given time. As a litigation department head explains:232

[We] have a high level insurance coverage litigation practice. The firm doesn't want to be known as an insurance coverage firm, however, that work tends to be countercyclical. So it is good work to have. Some of the partners in the insurance coverage practice can be some of the higher paid people in the firm. But the firm is not going to work at growing that practice group; we won't be doing a lot of new hiring there; we won't be making a lot of new capital partners in that area.

Consequently, an associate or non-equity partner who chose a specialty in his first several years at a firm can only hope that seven-to-nine years later, when he is being considered for nonequity partner and when he is considered for equity partner thereafter, his practice group is busy, profitable, and has a prominent place in the firm's strategic plan.

C. Success in the Competition for Resources

Lawyers who are promoted to partner must continue to accurately read and meet colleagues' and firm management's expectations and manage perceptions. For example, most firms recognize subjective criteria relating to partners contributions to the firm in their compensation decisions. This subjective criterion is referred to by different names in each firm, for example, "good citizenship credit" or "glue" (as in holding the firm together.) Willingness to spend time on associate training, participate in client pitches, respond to requests for information from potential clients, prepare marketing materials, serve on firm committees, and work to generate new business are all viewed, to varying degrees, as contributions to the health of the firm. Thus, some portion of an equity partner's compensation will turn on the compensation committee's perceptions about the partner's contribution to the day-to-day administration of the firm.

Further, an equity partner may want to grow his practice by hiring more paralegals or associates for his practice group. He may want some of his most valuable senior associates promoted to partner, or he may want the firm to market his practice. To accomplish any of these, he must understand what perceptions he needs to create to win management's support in the competition for these resources and wage his battles accordingly. It is also crucial that he understand the proper etiquette for waging these battles.

Ann, an equity partner and practice group leader with a successful and growing practice, describes the competition for resources between her and another practice group leader. Together, Ann and Rob built the litigation department in their office into a substantial practice. Ann explained that both of their practices have strengths and weaknesses. Ann's practice is rate sensitive (meaning the clients do not pay top hourly rates) but gives the firm exposure to the heads of Fortune 500 companies. Rob's clients pay premium rates, but Ann says his Achilles heel is that his practice lacks "cachet" and does not give the firm exposure to high profile, potential clients. Ann states:

[Rob] and I are in a battle right now about whose practice gets preeminence and resources. The firm is now at the stage where we are trying to get the profits per partner number up. So the equity partner pie needs to stay small to attract talent, [meaning] premium practices from other firms. [This means the firm will only make a few new capital partners]. [We are competing for resources,] but we [present ourselves] as arm-in-arm, a team. We would never say anything outright to each other, or others, but the battle is going on. I'm in one corner with my troops and Rob is in the other with his troops. Neither of us would say what I just said to you to anyone at the firm, but both of us are trying to sell our practices internally.

Another lawyer talks about the etiquette required in the competition for resources in his firm. "The whole system is selfinterest driven, but no one talks about it this way. Everyone talks about it as an altruistic system or talks about it in a communal sense. But so much of what partners are doing is being done to promote their own value."

In addition to employing the proper etiquette in the competition for resources, lawyers must create the right perceptions about their contributions and abilities. An equity partner explains:

You have to keep track of your client pitches to make sure that everyone knows that you've done them . . . . Some of this will be done subtly and some not so subtly. People are trying to make sure they stay noticed. There will be five people on a pitch. When they get back to the office only one person may talk about having gone on the pitch. But that person talks . . . so people associate him with going out and generating and finding new business. The person who is talking may not be the person who