SCU – LEGAL PROFESSION
FOURTH CLASS – COMPETENCE & DILIGENCE
JANUARY 31, 2012
FAQ’s
All Students
Read
4.1
Motion
Warriors
All Read;
Students with
Last Names
Beginning A-C
Are Ready to
Discuss
4.2
Criminal
Defense Work?
Me? Seriously?
All Read;
Students D-K
Are Ready to
Discuss
4.3
Quick SelfAssessment
All Read; L
ready to discuss
4.4
John Monroe
All Read: N-P
ready to discuss
4.5
From 3L to
401(k): Seasons
of an Attorney’s
Life
All Read: Q-Z
ready to discuss
4. COMPETENCE AND DILIGENCE
Rules: MR 1.1 & 1.3 Read those Rules and Comments!
4.1.
(Q 4.1)
(Q 4.2)
(Q 4.3)
(Q 4.4)
Questions
What is the duty of competence?
Is a brand new lawyer competent at anything at all?
How can a lawyer gain competence?
Can a lawyer help out in an emergency even if she’s not really
competent in that area?
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(Q 4.5) How does a lawyer maintain competence?
(Q 4.6) How does the duty of competence relate to the tort of legal
malpractice?
(Q 4.7) To whom is the duty of competence owed?
(Q 4.8) What is the duty of diligence?
(Q 4.9) What are common causes of non-diligence?
(Q 4.10) Does a solo practitioner have a special duty of diligence?
(Q 4.11) What is the relationship between “zeal” and competence/diligence?
(Q 4.1) What is the duty of competence?
Competence is the ability to do the task at hand. Usually, we define it with
reference to legal knowledge, skill, thoroughness, and preparation.
In addition to legal competence, you will need competence in dealing with
people. Some people are intimidated by lawyers, and some clients will have
different cultural backgrounds than you. Although we will deal with some of those
issues in the next unit, on “Abide, Consult & Communicate,” your ability to
successfully interact with clients and co-workers is a huge part of your competence.
Competence includes “cultural competence.” Your clientele might come from
various cultural settings, and you will need to be sensitive to those differences.
(Q 4.2) Is a brand-new lawyer competent at anything at all?
Great question. Brand-new lawyers are typically competent to do legal
matters that involve analysis of precedent, evaluation of evidence, and basic legal
drafting. More difficult, esoteric matters may demand higher levels of competence.
(Q 4.3) How can a lawyer gain competence?
If a lawyer lacks competence for a matter, the lawyer is ethically permitted to
undertake the matter and gain the competence through study or through associating
co-counsel who is competent in that area.
(Q 4.4) Can a lawyer help out in an emergency even if she’s not really
competent in that area?
If an emergency leaves a lawyer with no time to gain competence, and if the
lawyer cannot find another lawyer to undertake the matter, the lawyer may do the
best she can and, once there is an opportunity to obtain a competent lawyer for the
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client, may then transition the matter. For example, if you lack any criminal law
expertise and your brother-in-law telephones you at 2:00 am on Sunday to say that
he’s been arrested, and if there is no ready alternative, you could handle the
emergency until Monday, at which time you would presumably find a competent
criminal defense lawyer for him.
(Q 4.5) How does a lawyer maintain competence?
Because the law changes, lawyers have a duty to maintain competence.
Usually this is done simply by staying abreast of the field, reading new cases and
statutes, etc. In many states, lawyers are also required to attend a certain number of
hours of continuing legal education (CLE) each year.
(Q 4.6) How does the duty of competence relate to the tort of legal
malpractice?
Legal malpractice is a tort (duty; breach; causation; damages). The “breach”
element is usually proven by showing that the lawyer’s conduct fell below the
“standard of care” in that legal community. Quite often, but not always, the
malpractice action is premised on the theory that the lawyer’s work was
incompetent.
Although this course is not focused on legal malpractice, it is worth noting
that the causation element in legal malpractice is treated differently than causation
in most torts. In a legal malpractice case, the plaintiff must establish the difficult
element of “but for” causation rather than the easier element of “substantial factor”
causation. The plaintiff must prove that but for the lawyer’s breach the client would
have obtained some better result. That means that the client must prove a “case
within a case”—it must prove how the legal matter would have gone had the lawyer
practiced competently. That could even require a plaintiff to put on a mini-trial of
the original trial it lost due to the lawyer’s poor performance. (For most other tort
causes of action in the US, plaintiffs need only prove that the defendant’s breach
was a “substantial factor” in bringing about the bad result.)
(Q 4.7) To whom is the duty of competence owed?
Courts want lawyers to be focused on the needs of clients rather than on the
needs of non-clients. For that reason, the general rule is that only clients can sue
lawyers for incompetence.
There has been one tightly-defined exception to that rule. When a lawyer
drafts a will, trust, or similar legal instrument for a client who subsequently dies,
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and due to the lawyer’s malpractice the inheritance does not pass to the intended
third-party beneficiary, most jurisdictions permit that beneficiary to sue the lawyer
for legal malpractice. Courts have reasoned that because the client is dead s/he
cannot bring the suit, and given that the beneficiary is required to prove the
intentions of the deceased, the beneficiary will be “stepping into the shoes” of the
client.
(Q 4.8) What is the duty of diligence?
You have to keep working hard, in a timely way, despite opposition,
obstruction or personal inconvenience to you. (Personal crises do not excuse your
lack of diligence!)
As comment [2] to MR 1.3 notes, “A lawyer’s work load must be controlled
so that each matter can be handled competently.” (You might be aware that public
defenders across the country are trying to use that Comment to justify lighter
workloads. See, e.g., cases cited in Section 1.2, n. 10. Some public defenders have
workloads of 400-600 cases.)
(Q 4.9) What are common causes of non-diligence?
Procrastination; working less diligently on matters you don’t like; heavy
workloads; poor time management skills; and poor supervision and guidance by
bosses.
(Q 4.10)
Does a solo practitioner have a special duty of diligence?
In some states, it is suggested that solos should have a written plan with
instructions just in case the solo dies or is incapacitated. (MR 1.3, Cmt. [5])
(Q 4.11)
What
competence/diligence?
is
the
relationship
between
“zeal”
and
The rule on diligence governs the modern duty of zeal. Under the modern
approach in the rules, “zeal” is praiseworthy so long as it does not include nasty,
over-aggressive tactics and so-called “Rambo-style” lawyering. In the good sense,
“zeal” is always bounded by the lawyer’s duties to the court and is exemplified by
the lawyer’s diligence, enthusiasm, and concern for the client’s legitimate
objectives.
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4.1.
Example: Motion Warriors (Stephanie Francis Cahill),
ABA Journal, Nov. 2002.
High-profile trial lawyers representing unpopular clients are often rewarded
with big fees and media attention.
Then there are the solo and small-firm lawyers who represent what many see
as society's rabble. They know the money might be better elsewhere, but for them,
the trade-off isn't worth it.
These motion warriors are on the front lines of the American justice system,
slugging it out for ordinary people. In court all day every day, they all seem to know
one another and those who staff the courthouses. They chat with clerks and sheriff's
deputies, juggling multiple appearances before multiple judges.
In Chicago most of these lawyers practice at the Richard J. Daley Center,
Cook County's civil courts building. The 31-story structure was built in 1965 in
Chicago's Loop. Most floors have two rows of courtrooms. Some elevators only go
to certain floors, making navigation of the building tricky.
Other lawyers spend their days at the county's criminal division courthouse
about 6 miles southwest of the Loop, where air conditioning may be on the fritz and
ashtrays are still provided in some restrooms. Smoking in the building is prohibited,
but the policy seems to deter few.
We talked to four lawyers who are well-known and respected members of
this Chicago brigade. They represent alleged slumlords, drunk drivers, abusive
parents and murderers.
Honesty and reliability are a big part of the motion warrior strategy. You're
only as good as your word, they say. Being in court all the time for so long, it
doesn't take long to determine which lawyers are trustworthy.
Despite that commitment to the truth, they say many people disapprove of
their clients.
"I tell them that everybody is entitled to representation," says Mitchell F.
Asher, who has a substantial number of landlord clients. "There are three sides to
every story: yours, theirs and the truth. As long as we have an adversarial system,
which is the best system in the world, everything gets worked out."
JOEL KESSLER
Joel Kessler doesn’t dress like a lawyer. He often wears black jeans to court.
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Today, the jeans accompany a gray sports coat and a tie featuring the
Tasmanian Devil driving a car. Kessler's wavy hair looks air-dried and does its own
thing.
After 33 years in practice, Kessler can wear what he wants. And he doesn't
hesitate to turn away clients.
"This is a business. It's not a crusade," he says. "If a client doesn't want to
work with me, I don't need him."
Defending people charged with driving under the influence, Kessler says, is
not "a morality issue." The practice requires a certain character, someone who
realizes that some clients do wrong. "Some of them are very bad people who have
done horrible things," he says. "But if you chose to take the client on, you have an
obligation to that client."
Young lawyers need to know that, he says, and they need to understand that
clients will lie to them.
Kessler ferrets out the truth by initially meeting clients in person. On the
phone, he can't tell by a person's body language whether he or she is telling the
truth. If he can't determine the truth in person, Kessler may ask the same question
five times, in five different ways. If that doesn't work, he probably won't represent
the person.
Kessler's day starts out at traffic court in Maywood, a near-west suburb of
Chicago. For the most part, defendants in the courtroom are middle-aged,
accompanied by spouses or significant others. Some appear to be hung over, and,
indeed, the smell of alcohol is apparent when they walk by.
Kessler's first client, a man in his mid-40s who arrives at the courthouse
alone, is facing a one- year county jail sentence for driving on a suspended license.
Kessler gets him a deal for probation with mandatory community service.
The client is not thrilled.
"Clients always think they should get a better deal," Kessler says. "Every
client's always got an excuse about why he or she was doing something, assuming
they actually did something."
The clients he represents may have a problem with the truth, but Kessler says
his reputation is built on honesty.
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"You have to make sure that your ethics are absolutely unquestionable. If you
say you're going to do something, you do something," he says. "I don't think you
have to volunteer information, but if asked, you have to give an honest answer."
Next it's on to downtown Chicago, where he has four hearings scheduled at
the Daley Center. He drives a black sport utility vehicle with zebra-print seat
covers. Duck decoys are lined up on the dashboard. Kessler does not hunt or birdwatch, but he has a fondness for the wooden figures. He also keeps some in his
downtown office.
Is Kessler a good driver, given his knowledge of traffic laws?
"That depends on who you talk to—me or my wife," he says just before
running a red light at an expressway onramp. "Nobody stops for those; don't look so
surprised."
Kessler gets to the Daley Center about 11 a.m. In his first matter, a client was
videotaped during a DUI arrest, and Kessler files a motion to suppress the tape's
audio portion.
"Under Illinois law, you can't audiotape something without consent. My guy
didn't know he was being taped," Kessler says.
He has two other appearances on minor traffic violations. Neither judge has
arrived yet, so Kessler paces the hall, keeping an eye on both courtrooms.
"Showtime," he says as one judge appears. The matter takes about four
minutes. The second one is equally short.
Then it's back upstairs, where Kessler, 57, is defending a man charged with
driving under the influence on a suspended license. Kessler attempts to set aside an
additional summary license suspension from that arrest on the basis that his client,
who was picked up at a roadside safety check, was arrested after he refused a
Breathalyzer test. Under Illinois law, Kessler says, the arrest is supposed to be made
first, before the test is administered.
The arresting officer shows up to testify. He's somewhat famous among the
state's attorneys and the informal DUI defense bar for not following procedure,
Kessler says.
Kessler walks around the defense table while questioning the officer. He
notes that the officer listed the same time, 11:55 p.m., in three places on the arrest
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sheet: for the defendant's stop, the reading of his rights and his refusal of the
Breathalyzer. Kessler also asks the officer why his signature and badge number do
not appear on the arrest's carbon copy.
The officer, a small man who appears to be in his 50s with a large, gold eagle
medallion around his neck, winces before he answers Kessler's questions. In
between winces, he leans back in the witness chair with one arm behind his head.
The officer testifies that he determined the defendant was drunk after speaking with
him.
Kessler objects on the basis that the officer had not yet read the defendant his
Miranda rights. Ultimately, the officer testifies that he arrested the defendant after
he refused the Breathalyzer test. The judge is unfamiliar with case law on the
required order of the procedure and asks for a citation. Kessler heads up to the 29thfloor law library.
He finds the citation after combing through six books and returns to the
fourth-floor courtroom, caption and case number in hand. The judge grants Kessler's
motion that there was no basis for summary suspension because procedure
established by statute and case law was not followed during the arrest.
Kessler says this procedure violation happens probably 80 percent of the time
in DUI cases. What's difficult is getting an officer "to admit that he didn't do what
he was supposed to do. They probably do that 5 percent of the time."
MITCHELL F. ASHER
Mitchell Asher estimates that he represents thousands of landlords. He is
about 5'10" with broad shoulders. He wears a pinkie ring, and his hair is slicked
back. Most people know him as "Mickey." During the week, he can be found
striding through the Daley Center hallways, pulling a large trial bag on wheels.
Along the way, Asher, 58, stops to chat with other lawyers in the hallways
and elevators. The conversations, usually about building code or eviction laws, are
brief. Sometimes he doesn't even stop but shouts answers over his shoulder or
through a closing elevator door.
"You have to know the code" to represent landlords, says Asher, referring to
the Chicago Building Code. "Most attorneys don't study the code."
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As an example, he mentions a single-room-occupancy building on South
State Street, south of the Loop and a long way from the city's gentrified North Side.
In this structure, the rooms are literally cages.
"There's no law against having cages," Asher says, displaying his own
knowledge of the code. "All [the landlord] had to do was put in sprinklers."
Many of his landlord clients are charged with building code violations.
"If the client says he fixed some violations and he didn't, I get rid of the
client. I don't need that," he says. "When I tell the judge the [repairs] are done, I
have to believe it, and the judge has to believe me. All you've got is your
credibility."
Asher grew up with uncles and cousins who practice law. At age 12 he
started clerking for lawyers during the summer, filing motions in court. His former
bosses "knew a little bit about everything, especially the general practitioners." He
learned a lot from them on matters inside and outside of court.
After college, he enrolled at Chicago's Northwestern University School of
Law. "I'd been in court more than the law professors," he says. "They'd ask me how
to do things."
The school "taught everybody to be appellate lawyers," which never appealed
much to Asher. "I don't want to have to write all the time," he says. "I'd be bored. I
love being in court."
This is a good thing, since he's there five days a week. Today is Friday,
which is eviction day at the Daley Center. The evictee usually doesn't show up, and
each hearing takes about two minutes.
There are some exceptions. A female judge tells one tenant—who shows up
in a tank top with nothing underneath—that she is not properly dressed. The young
woman is given two hours to come back in more appropriate attire.
"Maybe she thought the judge was going to be a man," says Eliot B. Fishman,
Asher's associate. While they wait, Asher and Fishman file more motions.
"It was a business doing pleasure with you. You get it?" Asher jokes to a
clerk. Then he talks with an elderly sheriff about a mutual friend's health problems.
It seems the friend won't listen to the sheriff about taking care of himself, so the
sheriff enlists Asher's help.
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"I've been here 35 years," Asher says. "I talk to everybody."
The relationships pay off. Asher tells a story about an eviction order in which
the tenant thought he knew the system. After the hearing, the tenant informed Asher
that he knew it would take at least six weeks for the sheriff's department to serve the
order of possession to get him off the property. "I told [a deputy] what this guy's
attitude was, and they sort of expedited things for me," Asher says. "They got him a
couple of days later, when he was in bed with his girlfriend."
About 45 minutes after being scolded by the judge, the young woman returns
to court with a T-shirt over her tank top. She tells the judge that she's two months
behind in her rent because the landlord said it would be taken from her $700
deposit. She also accuses the landlord of stealing her bicycle, which she estimates is
worth $200. Then she starts to cry. Perhaps out of pity, the judge deducts $200 from
the $700 judgment.
This doesn't go over well with Asher's client, and they discuss the matter,
loudly, in a settlement room. A few minutes later, the landlord leaves looking
satisfied.
"He's never going to see any of that money anyway," Asher says. "It's
monopoly money."
DAVID P. WIENER
David Wiener uses words like “gargantuan,” “abuts,” and "putrid" in
conversation. In the criminal division courthouse, even in casual settings, he almost
always addresses a person by "Mr." or "Ms.," or in some cases, "Counsel."
His vernacular changes when he talks to clients, many of whom have been
referred to him from five of Chicago's largest street gangs. In those conversations,
the criminal defense lawyer's speech might include a few "say whats" and sentences
that end in "man."
Sometimes he forgets to whom he is speaking.
"My wife chides me because I often talk street talk at home," says Wiener,
57.
Tall and slender with silver hair, Wiener has a genteel look. He grew up in
Winnetka, a wealthy suburb along Lake Michigan, north of Chicago.
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"Very few people who grew up where I grew up are now criminal-defense
lawyers," he says. Originally, Wiener wanted to be a teacher. But he graduated from
college during the Vietnam War and decided that he needed to go to law school for
a draft deferment. When he graduated from Northwestern's law school in 1969, the
war still hadn't ended, so Wiener joined Vista, a national service program conceived
in the 1960s by President John F. Kennedy. The group was founded in 1964, as part
of President Lyndon Johnson's war on poverty.
Wiener worked for Leo Holt, an African-American lawyer, now a judge, who
led Evanston's Cook County Legal Services. The position paid $80 a month, and it
was the first time Wiener got to know people who came from a different
socioeconomic level.
"I think it taught me something I already knew—that people often use their
social status and the fact they have wealth to somehow make themselves feel better
about themselves," he says.
Wiener's father owned a Michigan company that manufactured shopping
carts, as well as an East Chicago, Ind., corporation that made railroad axles.
Initially, he would have preferred that his son go to a white-shoe firm.
"But once I started, I think he was quite pleased," Wiener says. "He didn't
take long to understand and become very accepting."
Of 200 active cases in Wiener's office today, 28 are murders. Generally, he
charges $25,000 for a murder defense, depending on how many associates or private
investigators are used. The gangs have a general counsel of sorts, Wiener says, who
refers members facing legal trouble to specific lawyers. He wishes they'd send him
more drug cases because they are more lucrative than murder trials.
"But, unfortunately, they give those to someone else," he says.
On this day in August, Wiener has appearances in robbery, weapons and drug
cases. He tries all his cases, "unless an offer is extraordinarily good." The approach
usually keeps clients happy.
"We try to try everything. I believe in the fairness of the system," Wiener
says. "Clients are much more grateful for having a trial. So many people who are
promised a trial are pled out."
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When a client is acquitted, Wiener usually celebrates by having dinner with
his wife, Christine. He also goes to his wife when a client is convicted, and she tells
him, "Everything is going to be OK."
"If the evidence is overwhelming, I feel that I've done my job but I can't feel
awful about the verdict," he explains. "I feel awful when my client is innocent or the
state has not produced sufficient evidence. Then I feel nuts."
The first matter of the day starts at 9:15 a.m. and is set for trial. It involves
two young men charged with possessing large amounts of drugs and weapons.
According to Wiener, police chased two different men into an apartment, where his
clients happened to be visiting. It was dark, Wiener says, and the police arrested the
wrong men.
About 15 minutes after the first appearance, Wiener has a hearing for a client
charged with robbery who is out on bail. The client is 18 but looks 15. His mother
accompanies him to court.
"Let's set this for trial today, all right? Would that be a good idea?" Wiener
asks the client in a grandfatherly tone.
The client nods his head, and a date is set. On the way out of the courtroom,
Wiener pats him on the back and compliments him on his red satin shirt, which
bears the logo of the urban wear label Ecko Unlimited.
The next client, who was arrested on drug charges, is not as agreeable. Also
out on bail, the man is not content to wait in the courtroom until his case is called.
He and Wiener have a brief argument.
"It doesn't matter, man," Wiener tells him. "Just sit down and relax." Many of
Wiener's clients are younger than 30.
"Young people do things that older people forget how to do," he says, like
hanging out in the park at 1 a.m.
Most weekday mornings, Wiener visits clients in jail before court starts and
again at the end of the day. The jail is just down the street from the criminal court.
He says he's never had any run- ins with disgruntled clients, or with their gangs.
"You manage to avoid problems with clients if you represent them to the best
of your ability," he says. "If a client knows you're fighting for him, he's not going to
be angry at you."
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CHARLES J. ARON
Charles Aron gets to court about 8:30 each morning. A former seventh-grade
teacher, he still has a scholastic look, which includes ties featuring children's
artwork that are sold by Save the Children. He has more than 50 of them.
"In the last heat wave, I wore one with snowmen," Aron says. On this day, he
also wears a double-knit navy blue blazer and aviator glasses.
His work still involves kids. But now he is usually at Chicago's Juvenile
Justice and Child Protection Department, located in a new courthouse in the West
Town neighborhood.
Aron seems less intense than many litigators, especially the ones who spend
their days in court. There is a cell phone affixed to his hip, and he carries a beeper.
But he rarely uses either device.
A lot of lawyers make phone calls while they wait for hearings, but Aron
prefers to read novels. "I just sort of sit and chill." Sometimes he writes. His articles
have appeared in The Champion magazine, published by the National Association
of Criminal Defense Lawyers.
He also tries to get away from time to time. "In the summer I try to thin
things out," Aron says. "And I take the occasional afternoon off to play golf."
Aron first encountered juvenile court as a child, when he and his mother
would ride past the structure on the trolley, which has since been replaced by diesel
buses.
"She'd say, 'That's where Mrs. Jones lives. She comes in the middle of the
night and takes all the bad little boys,'" he recalls of the fictional character his
mother concocted to keep him in line.
After graduating from law school in 1972, Aron got a job as an assistant
state's attorney, prosecuting juvenile matters. "I said, 'Mom, guess what? I'm
working for Mrs. Jones,'" he recalls.
Since then, Aron has not strayed far, but he has switched sides. He is a panel
attorney appointed to represent parents or to serve as guardian ad litem for children
in cases where parental rights are at stake. Aron earns $40 an hour for in-court time
and $30 an hour for work outside of court. He also is a panel member for the
Federal Defender Program.
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Since Aron started practicing law, the county has built three different court
buildings on the site he feared as a youth.
"The first building was more dingy and dirty," he says. "Thirty years ago,
there were two courtrooms. Now there are 14. There were three state's attorneys
assigned to the juvenile unit. Now there are three assigned to each courtroom."
Today, the courthouse is shiny and new with toys and books for kids, as well
as volunteers who stroll the halls passing out milk, fruit and cookies.
Parents have changed, too, says Aron, 56. "We've become more aware—and
more sensitive. It was not unacceptable to smack kids across the backside 30 years
ago."
Many of Aron's opposing counsel were not even born 30 years ago. It's not
unusual for Aron to give them advice, and he says they often take it. "It makes my
life easier if they do something correctly."
Aron estimates that one in 25 of the parents he represents cleans up his or her
act and keeps custody of the kids. He mentions a previous client.
"There was no other way to describe her: She was a crack whore," he says.
The court gave the woman six months to stop using drugs, Aron says, and she did it.
She was able to keep her three children, all of whom were younger than age
12. Today she works as a concierge at one of Chicago's largest hotels.
"She hit bottom and decided to turn her life around," he says. "It was a
rarity." For the others, Aron says that he often compartmentalizes his feelings.
"You have to be a little cold because these cases will get to you," says Aron,
who has no children. "My wife has always instructed me that I can't bring any
children home. It's a running joke we have."
He says he feels that his work as an attorney has been more of a benefit to
society than to the legal community.
"When I'm representing parents, I give them the legal support they need in
order to reunite their families, keeping in mind that I am only as good as they are,"
Aron says.
Perhaps showing how he compartmentalizes, Aron says it's easy to represent
parents who don't try to comply with court demands.
14
"You just show up in court," he says. "I can't really advocate per se. I can try
and buy them time, I can advise them and I can direct them, but if they don't do
anything, there's very little I can do in the way of advocating for them."
On the other hand, Aron says that if a parent is doing everything he or she
can "and if it's the bureaucracy that's blocking them, I will not be hesitant about
coming into court and laying waste to a social worker."
Is that one of the best parts of his job?
"No. ... Well, yeah," he says. "If I can get something done for a client, it's
great."
*
*
*
*
*
89 A.B.A.J. 10 (January 2003)
Letters to the Editor
Editor:
Shame on you for not including one female solo practitioner or small-firm
owner of the four you highlighted in “Motion Warriors.” As a black woman and
owner of a small firm who practices in the area of corporate employment defense, I
was looking forward to reading about other female lawyers who practice “down in
the trenches.” Instead, what I got was the perspective of four white men. What
happened to diversity?
Jennifer Robinson
Denver, Colorado
4.2.
Example: Criminal Defense Work? Me? Seriously?
You are a first-year associate at a medium-sized firm, in the banking
department. The partner you work for calls you at home early one Sunday morning.
He wants you to go to the county jail and handle the bail and arraignment hearing of
the son of an important client. The hearing will be Monday afternoon. The son is
going to be charged with felony possession with intent to sell cocaine. The partner
asks you to handle the hearing because he recalls you did an externship at a
prosecutor’s office in your third year of law school. In the externship, you were a
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certified legal intern who handled research, fact investigation, drafting and some
traffic court proceedings.
You have some qualms about taking the case on, as you have not practiced
criminal law outside your one-semester externship, your current caseload is
transactional, and you have a lot of work at the moment. On the other hand, you
don’t want to disappoint your boss—a powerful partner who can “make or break”
your partnership chances.
(a) Do you raise your qualms with the partner, and, if yes, how? What do you
do if the partner insists that you represent the son because it is important to assist
this client?
(b) What do you need to do to become competent in representing the son?
(c) You go to the county jail to meet the son. What top 3 things do you tell
him about yourself as a lawyer? Plan not only the subject but also the language
you’ll use to tell him.
4.3.
Example: Quick Self-Assessments
Look at the following 2x2 charts and the list of possible career development
paths. For Chart 1, assume that you have ten points to distribute across the four
quadrants—and you can’t use decimals or fractions. Distribute more points in the
quadrant that seem to play to the strengths you expect to develop; assign fewer to
quadrants that don’t strike you as the best path for you. (For, example, in an extreme
case, you might assign 7 points to the internal expertise quadrant and 1 point to each
of the other boxes.) To help assess the best fit, review Chart 2 for the success factors
for each role. After you’ve allocated your points, share your results with your
Practice Group members and discuss how you all came out as you did.
16
Chart 1. Practice Styles
Expertise
External
(new business from new
clients)
Internal
(new business from
existing clients)
Relationships
Hired Gun
Rainmaker
(External Reputation)
(firm ambassador)
Brain Surgeon
Point Person
(Technical Specialist)
(client manager)
Chart 2. Tactics By Business Development Type
Hired Gun
Rainmaker
Marketing
Conferences
Pitches
Writing Articles
Networking
Boards
Entertaining
Community causes
Brain Surgeon
Point Person
Research & Development
Internal reputation
Internal CLE
Client service
Events with client
Managing teams
Look at the following list of “sweet spots.” Rank them from first to last in
terms of how you see them fitting into your future. Share results with your PG. Talk
about what skills you need to develop for your top choices and how you might get
those skills.

Writer (advocacy). You’re known for your ability to write great briefs
without the need for extensive re-writes. This typically involves long hours,
alone in your office, diving down deeply into the material at hand.
17

Legal researcher. You can’t wait to dig into the law and find out what’s
there.

Project Manager. You can break down a litigation (e.g., document review)
or a deal (e.g., due diligence), assign the tasks to the right people, solve
bottlenecks, and keep the overall project moving.

Law wonk. You’ve taken one or two complicated areas of law and made
them your own. People in your firm and colleagues at other firms know you
as the “go to” person on those topics.

Clownfish in the Anemone. You somehow are immune to the stresses that
drive others crazy. You can work long hours in tense work environments.
You even kind of like it. (Note: a clownfish happily swims around in the
anemone tentacles that instantly kill other fish.)

Trial lawyer. You love the “Show time!” and the competition of trial work.

On my feet and talking all day. You’re not a desk-bound person, and so you
spend your days on your feet, talking to dozens of people. The time between
9:00 a.m. and 5:00 p.m. flies by every day.

Deposition and law & motion. You enjoy civil litigation. You take several
dozen depositions each year and you write and argue that many motions
down at the Law & Motion calendar.

Compliance lawyer. You’ve deeply studied some aspect of regulatory
compliance, which involves knowing the regulations and interacting with the
government bureaucrats. You help your clients comply with their duties,
which sometimes takes some cajoling.

Working with people. You like interacting with people who have real world,
personal issues.

Working with abstract/analytical entities and issues. You like dealing with
corporations and other organizations, and prefer dealing with the more
analytical and abstract issues of law.

Deal lawyer—people side. You love the negotiating, planning, strategizing,
etc., that are integral to the art of the deal.
18

Deal lawyer—documents and drafting side. You love the craftwork that’s
needed when complicated deal documents need to be drawn up—but you’re
not in love with the direct negotiating.
4.4.
Example: The Case of John Monroe
During John Monroe’s first year of law school at Indiana Central University
School of Law, he attended a number of presentations by his career services office
and enjoyed talking to lawyers during his first year networking exercise. But during
his second year, he lost touch with those lawyers and lost interest in searching for a
job when he (like 80% of his class) did not get one through on-campus
interviewing. Instead, he told himself he would focus on his job search after he had
his bar results.
In May 2009 Monroe graduated with lots of debt and no job offers. He spent
the summer preparing for the Indiana bar examination, telling himself that he would
resurrect that contact list from first-year when he was less busy. But it felt
uncomfortable to contact those lawyers after two years, so he didn’t do it. Instead,
he took a part-time job giving golf lessons as he awaited the bar exam results. In
late August 2009 Monroe learned that he had passed, and he was sworn in.
By early September 2009 Monroe wondered if he should take a non-legal job
while searching for legal employment or just “hang his shingle” by becoming a solo
practitioner. He decided to open his own office, but until his practice grew he would
continue giving golf lessons on the weekends.
Monroe spent September finding an office and buying his office supplies. He
signed an “office share” sublease with three solo practitioners near the county
courthouse. He paid a web developer to create “JohnMonroe.com,” and spent
$7,000 on used office furniture, a computer, a fax-printer-scanner, software, and
basic office supplies. Having less than $1,000 left in his bank account, Monroe
decided not to hire an assistant. After telling his grandparents of his plans, Monroe’s
grandmother gave him $7,000 for the purchase of a legal malpractice insurance
policy from the State Bar’s program for solos and small firms, and he attended a
short CLE program on starting your own practice that stressed having a viable
business model and understanding time management.
Monroe still needed to choose an area of practice. During law school, he
enjoyed transactional practice and working in the school’s clinic for start-up and
non-profit corporations. But corporate jobs just weren’t available. So he decided to
build a practice doing divorce and personal injury cases. He would charge 33%
contingency fees for injury cases, but he worried that he wouldn’t have the cash to
19
pay the upfront costs, such as filing fees and expert fees. For the divorce and family
law matters, he set his fees at $275/hour with an $825 retainer (which equaled three
hours of work). Monroe hoped to bring in a bunch of divorce cases, work at least
three hours on them, and move the retainers from the trust fund to his personal bank
account.
Monroe handed out business cards everywhere he went, and took referrals of
existing cases from local family law lawyers. By mid-October, he had taken in
thirty-five family law cases, with nearly $30,000 in retainers. He made sure to work
three hours on each matter—some 105 hours in all—and the $30,000 in revenue
paid off his debts for undergraduate education and for costs for starting his law
practice. But by late October, Monroe realized that the family law cases took a lot
of time, that he was still inefficient, that he couldn’t take on any new matters, and
that many of his clients—especially the referrals of existing cases from other
lawyers—wouldn’t pay their legal bills. Revenue wasn’t pouring in. The backlog of
divorce cases was wearing him down. Even just the process of calendaring and
scheduling his matters was taking too long. And, given the colder weather, the golf
lessons had slowed to a trickle.
By December, John had taken in six minor personal injury matters. One day
in late December, Monroe’s luck turned around while giving an indoor putting
lesson to a wealthy Hoosier, Benjamin Stucky. Stucky, who knew that Monroe was
a lawyer, confided that his marriage was ending. Stucky also told Monroe, “I was
hurt pretty bad in an automobile accident a while back when my brand new Cadillac
SUV hit a tree. The steering was defective on that model. I’ve been hurting ever
since.”
Monroe offered to represent Stucky on the divorce and possibly on the car
crash as well, but asked about the statute of limitations. Stucky said that the accident
had happened on July 10, 2008 and that he’d drop by Monroe’s office after the
holidays. Because there was a two-year statute of limitations on defective
automobile cases, Monroe carefully noted the “last day to file” date of July 10, 2010
in his office calendar.
Stucky didn’t drop by Monroe’s office until April 10th. Meanwhile, the
divorce cases continued to be hard work. The clients needed hand holding and the
courts insisted that the parties attended multiple rounds of time-consuming
mediation. He spent his week going back and forth from his office to the courthouse
and meeting with clients. Although parts of family law were straightforward,
Monroe needed to learn the court’s formulas for deciding custody issues and for
setting alimony and child support. He bought two treatises on Indiana family law
20
and attended several CLE sessions in the evenings. About one-fifth of his clients
spoke English as a second language, which made it harder and slower to have client
meetings. And Monroe realized that he needed to establish good working
relationships with the other divorce lawyers in the county, which required
socializing and volunteering on committees for the county bar association. As
before, some of his clients didn’t want to pay their legal bills. Monroe wanted to fire
those clients, but wasn’t comfortable confronting them about fees. By April,
Monroe was working long hours, trying to keep current on his matters, and trying to
stay profitable.
At the April 10th meeting, Monroe, who was unprepared because of his
backlog of divorce cases, bluffed his way through. Stucky gave Monroe the divorce
papers he was served with on April 5th. Stucky was worried that his wife, who
came from a wealthy French family, would try to take their children back to France,
where they had been born. Stucky said that his prenuptial agreement was too
favorable to his wife. Monroe said that he would look into international custody
issues and research the law on prenuptial agreements.
Next, Stucky mentioned his automobile accident. He didn’t have the details
and told Monroe to get the accident report and other paperwork from the insurance
company. Monroe said that there may be a claim for a defective steering mechanism
and that Cadillac wouldn’t want bad publicity, but that the claims would need
factual research. Monroe reassured Stucky that he would start looking into the car
crash to see if there was a claim.
After the meeting, Monroe realized that he would need help researching
international custody issues. He decided to ask Nancy Harris, an attorney leasing the
adjacent office, to do the international custody research for him. Monroe and Harris
met for lunch at Harris’s favorite bar to discuss the case and a fee-sharing
arrangement. Harris assured Monroe that she had handled international custody
matters and could quickly prepare a memo.
Monroe, excited about the prospect of a big settlement, put in long hours on
the Internet looking for evidence of steering defects in Cadillacs. He had even
telephoned some plaintiffs lawyers in the state and across the country to see if any
similar suits had been filed. He wasn’t finding anything. He called a few potential
expert witnesses on automotive defects, but they wanted large advance fees. And it
had taken weeks to get the files from the insurance company and from Ben’s
doctors.
21
Worried that he hadn’t heard from Monroe, Stucky called on May 23rd to
request a second meeting. Monroe returned Stucky’s call on June 4th to say that he
was making progress and not to worry.
On June 10th, after he had written the basic allegations of the complaint,
Monroe began to draft the key allegations about the defective steering. Only then
did Monroe notice that the insurance report on the accident said “June 10, 2008.”
Panicked, Monroe called Stucky, who said, “You’re the lawyer, and you have the
files. I don’t remember the exact date.” Monroe realized that he had four hours to
file suit. He decided to add generic allegations of a defective steering mechanism
and then later amend the complaint with more details. On June 10th, Monroe
hurriedly filed a complaint against General Motors that pled:
On June 10th, 2008 the Plaintiff was driving a Cadillac SUV when
suddenly, and unexpectedly, the steering mechanism failed, causing
the SUV to careen into a tree. As a result of this accident, caused by
the Defendant’s negligent making of the said SUV, the Plaintiff has
suffered numerous personal injuries and prays for actual and punitive
damages in the amount of ten million dollars ($10,000,000.00).
On the morning of June 13th, Monroe received a telephone call from Susan
Stonewall, a lawyer from Nice Billerz, the largest firm in Indiana, who said that she
represented the defendant. After small talk, Stonewall politely said, “John, your
complaint names the wrong defendant, it pleads a specific amount of punitive
damages, which isn’t permitted, and it fails to allege with particularity, as is
required by the statute, what the specific defect was. We will certainly win a motion
to dismiss. Under some of the case law interpreting the statute, we think that your
amended complaint won’t get the benefit of the earlier filing date. In other words,
you’ve probably blown the statute. By the way, I assume that you’re aware that this
steering mechanism is widely considered to be one of best ever designed and that,
according to the police report, your client had been drinking that night. That’s why
he crashed. We’d like you to drop the complaint. But, fair warning: if you try to
amend, we will get aggressive with your client—and with you, for malicious
prosecution.” Monroe bluffed his way through the call and said he’d call Stonewall
back.
Monroe was furious at Stucky and at himself. He wanted to call Stucky, but
Monroe didn’t know where the divorce matter stood and knew that Stucky would
ask about it. Monroe had been so busy that he had forgotten to file an appearance in
Stucky’s divorce case until May 25th and didn’t recall getting any notices of
hearings. So Monroe raced over to the courthouse to examine the file. The court had
22
already held two hearings and had set the final hearing for the 1st of July! Stucky
had attended the first hearing, but only the lawyer for Stucky’s wife had attended
the second one. Monroe wondered if Stucky had gotten notices of the hearings and
had failed to inform Monroe. Not knowing what to do, and now in a huge panic,
Monroe called a law school classmate who was practicing in a firm that specialized
in family law. Monroe’s friend recommended filing for a continuance of the final
hearing and informing Stucky of all developments. Monroe’s friend said, “Those
problems will deteriorate each day, so bring the client in, make disclosure, and get
to work.”
Monroe then called Harris, who hadn’t produced a memo. Monroe drove
down to Harris’s favorite bar and confronted her. Harris said that she had had
personal issues and just hadn’t done the memo. Monroe spent the next hour learning
what Harris knew about international custody, which mostly involved Canadian
law. Monroe returned to the office to prepare a motion for a continuance and called
to ask Stucky to come in for a meeting.
At the meeting with Stucky on June 14th, Monroe fully laid out the problems
with the complaint and the divorce case both orally and in writing, and then accused
Stucky of getting the date wrong and concealing that Stucky had been drinking the
night of the crash. Stucky became irate, screaming at Monroe, threatening to have
his license revoked, and eventually storming out.
Later that day, Monroe got a phone call from another lawyer in town, saying
that she had been retained to represent Stucky and asking for all the files right away.
Monroe delivered them late that afternoon.
Two months later, the State Bar informed Monroe that Stucky had filed a
formal complaint against him and that one of his family law clients had also filed a
complaint for lack of diligence. Under the discipline statute, Monroe was required
to respond candidly to the State Bar’s investigator, who would arrange for a
recorded interview.
Eventually, the investigator filed a report stating that (1) Monroe had fully,
fairly, and diligently represented the family law client; (2) Monroe had not
committed any acts of dishonesty or fraud toward Stucky; (3) Monroe had violated
both MR 1.1 and 1.3 in his handling of Stucky’s divorce matter; and (4) Monroe
had violated both MR 1.1 and 1.3 in his handling of Stucky’s claim for personal
injury arising out of the car crash. On that basis, the State Bar filed formal
disciplinary charges against Monroe.
23
Stucky sued Monroe for malpractice regarding both incidents. Fortunately,
Monroe’s malpractice insurer provided for defense counsel. The malpractice case
was sent to an early mediation, where Stucky’s lawyer had to concede that the
divorce matter had turned out well for Stucky and that Stucky had not even tried to
amend the complaint about the car crash. Stucky’s lawyer couldn’t even begin to
show that Stucky ever had a good claim against Cadillac. Stucky accepted a small
settlement of $10,000 from Monroe’s insurance carrier and signed a settlement
agreement stating that Stucky “had been made whole by the settlement amount.”
Based on the advice of his lawyer, Monroe took out a $50,000 small business
loan to capitalize his law practice, dropped all his volunteer work for now, hired a
bookkeeper and a secretary on a part-time basis, and terminated his non-paying
clients. That allowed Monroe to take on additional clients. Monroe spent a lot more
time analyzing which new clients to take on and started to require “evergreen”
retainers, so that as Monroe did work and withdrew funds from the client’s retainer,
the client was required to replenish the retainer to its original amount. That
permitted Monroe to quickly identify problem clients and, when necessary,
terminate them. By late 2010, John Monroe’s financial footing looked reasonably
sound and he was sleeping better at night.
4.5.
Example: From 3L to 401(k): Seasons of an Attorney’s
Life (Sirkin)
While no two journeys are the same, an attorney’s progression through life at a law
firm holds some constants across the board.
The professional career trajectory in the average large law firm has never been
easy or straightforward. There were, however, inevitable stages that one attained,
mastered, and passed. Despite all the changes in Big Law (and small law), the
trajectory itself has not changed much. It may be more complex and there may be
more on and off ramps, but the skills and competencies required to master each stage
are nevertheless predictable as responsibilities for matter management and firm
leadership increase.
The professional development of attorneys in a law firm setting has become an
expertise that most large law firms require. This paper attempts to explore this topic
using some time-tested methods from the field of psychology and adult development,
and help both practicing attorneys and those who help guide their career path
navigate a career in the law. From Sigmund Freud to Daniel Levenson,
24
conceptualizing a life path as a series of stages is a tried-and-true developmental
approach with deep roots in psychology. As is often the case, what is true for life in
general is true for life in the law.
While no two journeys are the same, an attorney’s progression through life at a
law firm holds some constants across the board. This white paper will map out the
nine career stages—and corresponding transition phases—through which a
successful career in a law firm partnership progresses. The passage from each of
these stages to the next entails a personal and professional transition and requires
mastery of a specific set of skills, tasks and opportunities. As you read this paper,
think of attorneys you know who feel “stuck” in their role within the firm and ask
yourself, “Which stage are they at, and what skills can I help them develop or
enhance in order to advance to the next one?”
Mastering the challenges one faces in a law firm means successfully
progressing up a ladder that yields a number of career benefits, including higher pay,
more status, increased autonomy and greater responsibility. Failure to master a stage
may lead to career stagnation, frustration, frozen compensation or separation from
the firm.
This approach represents a departure from traditional law firm career pathing.
For traditionalists, the focus is on partnership—it has been the primary status
division in law firms. Partner or non-partner, owner or non-owner: these have been
the only meaningful divisions in the past when thinking about progression in a law
firm partnership. But times have been changing. As law firms have grown from
local, “clubby” partnerships to international, multi-billion dollar firms, other
developments have become inevitable. A focus on professional management of
lawyers by lawyers, the growing importance of non-attorney professionals to help
manage the firm, and the growing cadre of non- partner attorneys (non-equity, of
counsel, and multiple tier partnerships) are all examples of these changes. It is
inevitable, and arguably a good thing, that larger firms are starting to borrow a page
from their corporate cousins when thinking about importance of management and
career paths.
It is odd to think that the attainment of partner status is not even the midpoint
in this new world. Management opportunities, with concomitant pay increases and
leadership responsibility, will be inevitable stages on the career path of the
successful firm attorney. For the attorney who chooses to take on these
responsibilities, there are numerous stages beyond attaining partner status that must
be mastered in a stage-like progression.
The trajectory is not as straight of a line as it once was. Twenty or thirty years
ago, it was not uncommon for a lawyer to join a firm as a young associate and stay
25
with that firm throughout an entire career. Now, such loyalty is rare, both from the
firm and from the associate. Many attorneys change firms after a few years and some
firms simply do not survive, while others merge and morph into other firms.
Yet the stages that an attorney must master to progress in his or her career
remain consistent in the law firm environment. Firm changes, career interruptions
and forays into business or politics only interrupt the rate, but not the route, of
progress through a law firm.
We will examine each career stage and the skills needed to advance through the
corresponding transition phase in more detail, but the following provides a brief
diagram of the journey:
I’d like to add a word of caution here before unveiling the following—these
stages should not be read as de-valuing the solid contributions of lawyers who
choose to practice without the ambition or opportunity to manage. The schema below
is simply a recognition of the changing landscape of 21st century law firms, where
profit depends on leveragability, enabling partners to earn more than the sum of their
billable hours.
It is simple economics that profit is a function of what is left after subtracting
the cost of labor (i.e., what the partners receive in salary and bonus) and overhead. A
partner who is paid only for the time he or she bills may earn a “good enough”
salary. However, the opportunity to earn more than that, not to mention the ability to
pay for non-producing professionals that make the firm run smoothly (development,
IT, marketing and other service areas), requires money earned and set aside for this
purpose. For law firms to be solidly profitable, and for partners to be able to
26
participate in ownership income over and above their billable hours, they must be
able to leverage lower-priced talent. This is the essence of leverage and why it is so
important to the firm. It is also why effective management is critical for the
profitability of a large firm; it is the difference between owners making a profit or
simply paying their own way. Ultimately, it is the rationale for working in a firm vs.
being a singleton.
STAGE I: SUMMER/EARLY ASSOCIATE
For any attorney the plan is to grow in practice, gain experience and achieve
agreed–upon goals through self-knowledge and focus.
The first stage of an attorney’s career—the first season of her professional life
—sometimes begins before law school even ends. Whether a summer associate or a
full-time associate fresh out of law school, the goal of a stage one attorney is to grow
a baseline of skills and core competencies required to advance to stage two. This is
an ongoing theme among the stages (with the obvious exception of the final stage):
they are largely meant to groom an attorney for the next stage.
Early associates are equipped with knowledge gained in law school, but lack
the experience and application of this knowledge into practical skill. The goal of
stage one for any attorney is to grow in practice, gain experience and achieve agreedupon goals through self-knowledge and focus. Stage one attorneys are expected to
develop four main skills:




Exhibiting self-discipline and emotional self-control. Life in a law firm
is very different from life in law school, and mastering this drastic life
change is an important step in any attorney’s personal and professional
development.
Being a reliable and trusted contributor. Young associates are expected
to work to an accepted standard. As this standard is met, trust comes
naturally.
Coordinating complex tasks. A stage one attorney must not only do her
assigned work, but also prioritize, multi-task and coordinate larger
efforts.
Functioning in small teams. Early associates often participate in smaller
teams assembled for specific projects or matters. Being a valued,
respected and trusted member of this team means excelling at the job
and acting in the best interest of the team—playing nicely in the
sandbox, if you will.
27
Early associates are not yet expected to lead, but rather learn and then apply
this practical learning on the job; eventually growing into a small, yet significant,
leadership role. A successful journey through stage one often lasts as little as one to
two years, after which an attorney undertakes his first career transition—the shift
from individual contributor to matter management.
STAGE II: MID-LEVEL ASSOCIATE
The goal is to learn how to manage a small team and get work done through and
with others, rather than by one’s self.
Upon mastering the leadership skills developed during stage one and
demonstrating an ability to manage both one’s self and the legal matter at hand, an
attorney enters stage two. As a mid-level associate, requirements and expectations
are increased, as is responsibility. While stage one attorneys are focused on
managing themselves, stage two attorneys seek to manage others and absorb broader
leadership and matter management skills.
The goal of a stage two attorney is to learn how to manage a small team and get
work done through and with others, rather than by one’s self. The second transition
phase—from matter management to small team and project leadership—requires the
development of additional skills:

Defining and assigning work to be done. This includes communicating
with superiors and others about needs and expectations, planning,
organizing, choosing team members and delegating tasks.
 Developing junior staff. This requires enabling more junior team
members to do their work by monitoring, coaching, providing feedback,
acquiring resources, problem solving and communicating. The
challenge here is not to do the work oneself, but to facilitate others to
do the work.
 Building social contacts through establishing relationships with junior
associates, peers, and partners and other support staff that facilitate
open dialogues and trust.
Stage two can last anywhere from two to five years, depending on the firm and
the growth rate of the individual. Since many firms are abandoning the lockstep
model of associate advancement and focusing on performance-based measures for
retention and promotion, it is not always easy to delineate the transition between
associate stages one through three. A functional competency model helps. However,
mastery of the skills required at each stage will ensure advancement up the ladder
toward partnership.
28
STAGE III: PRE-PARTNER ASSOCIATE
It is necessary to broaden the focus and learn the delicate balancing act of serving
two masters—the client and the firm.
An attorney’s journey through the first two career stages is all about personal
growth and getting work done. However, in stage three, with partnership on the
horizon, there is a slight shift in focus toward practical firm issues. Partners are
expected to deliver superior work and materially affect the success of the firm from a
business, reputation and staffing standpoint. As such, the stage three attorney,
seeking to make the leap from associate to partner, needs to broaden her focus and
learn the delicate balancing act of serving two masters—the client and the firm.
Stage three is one of the most difficult phases in an attorney’s life, because it
requires not only a sharpening of practical work skill and the expansion of skills
from project management and small team leadership to overall matter and client
management, but also the development of staff management and business skills
required for partnership. Practically speaking, a stage three attorney is expected to:

Build alliances inside the firm at the practice group level and beyond.
The term “partner” as used in this context is not a coincidence –
partnership means growing professional networks and building bonds
that are in the best interest of one’s self, one’s clients and one’s firm.
 Develop a consultative relationship with clients. Stage three attorneys
are expected to move out of the “worker bee” mindset into a more
strategic, thoughtful role, especially as the face of the firm in front of
clients.
 Identify a go-to team for both project and broad matter management. To
paraphrase an old saying, behind every good attorney is an even better
team. Building rapport with a trusted team of colleagues makes one’s
job easier and lessens the mental strain of complex task, project and
matter management. It also contributes to the production of quality
work product, upon which reputations are built.
The jump from associate (stage three) to partner (stage four) is one of the most
easily recognizable and rewarding transitions an attorney will make during his
career. However, it is important to remember that “making partner” only represents
approximately one-third of an attorney’s journey through a law firm.
STAGE IV: EARLY PARTNER
29
The next step in an attorney’s life means going from matter management and client
contact to full client management and greater internal responsibilities.
Many law students will be shocked to learn that attaining partnership is only
the fourth stage in a nine-stage career progression; partnership is often considered
the end-game of law firm life. However, simply making it to partnership, while a
tremendous accomplishment, does not mean an attorney is done growing, learning
and advancing through the firm.
Early partners are generally expected to serve as client contacts, lead broad
matters and multi-pronged tasks, and manage personnel. But as any seasoned firm
partner will tell you, this is merely dipping a toe in the larger responsibility set
required of senior firm management.
The next step in an attorney’s life means going from matter management and
client contact to full client management and greater internal responsibilities. As such,
a stage four attorney is expected to develop these skills:




Identifying, selecting and training first-line team leaders for individual
matters. Stage two and three attorneys need to grow, and stage four
attorneys need to help them. By developing a trusted team of associates
to assist on client matters, an extension of the final required skill
outlined as part of stage three, an early partner is freed up to pursue the
other, less “in the weeds” requirements of her position and can hold this
first-line team accountable for managing the matter.
Deploying and redeploying resources among matter-specific teams. An
early partner must be able to identify appropriate team members and
project leaders and allocate appropriate resources to the areas where
they are most needed.
Managing boundaries. Matter and project leaders and teams will often
serve more than one master within the firm; juggling time and focus on
multiple matters is the norm. The art of managing the dueling
responsibilities and respecting the boundaries between work done for
the partner’s clients vs. other clients is an important aspect of being a
stage four attorney.
Cross-selling between practices. As an attorney progresses through
these career stages, the business aspect of the practice of law becomes
increasingly important. Being able to cross-sell clients on services
provided throughout the firm, not necessarily only in one’s own
practice, is a valued skill. A stage four attorney needs to listen to her
clients, identify their needs and offer up strategic solutions, even if the
work is outside her own expertise and practice area.
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STAGE V: MID-LEVEL PARTNER
The main objective is to establish one’s self as a force within the firm, and an agent
of positive change and momentum.
After several years of early partnership, an attorney passes into stage five—the
mid-level partner. The main goal of a stage five attorney is to establish one’s self as a
force within the firm, and an agent of positive change and momentum. It is during
this stage when a partner makes a more significant shift from client work to
management and the fine art of making rain.
Bringing in new clients and additional business (even from existing clients) to
the firm is the easiest way for a partner to set herself apart from her colleagues, but it
cannot come at the expense of managing her workload or internal management
responsibilities. As such, the skills developed during stage five span a broader
spectrum than any previous stage, and help firm management to separate those
attorneys with upper-leadership potential from those who have reached their
maximum contribution to the firm:




Juggling demands. The stage five attorney usually manages several key
client accounts, yet must master the art of making each client feel like
they are his only concern.
Supporting the practice leader. While a mid-level partner carries a
heavy burden of responsibility, he still has an overall responsibility to
the practice and the practice group leader. The practice leader can be
responsible for several mid-level partners, so supporting this leader in
ways that facilitate the functioning of the practice group become a great
challenge and opportunity for a stage five attorney.
Contributing to the firm as part of good citizenship. Whether through
committee work, serving as a liaison or mentoring younger staff, there
is an expectation that mid-level partners contribute to firm culture and
growth.
Learn to manage peers and even senior partners. “Leading from the
middle” is an invaluable asset for a mid-level partner, and increasingly
common in today’s firm culture. One does not need “managing” in his
title to be a change agent, and the exhibition of management and
leadership skills in every direction (down, sideways and up) will help a
stage five attorney transition to larger management roles – stages six
through nine.
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
Longer-term thinking. As an associate and early partner, it is not always
easy to see the forest for the trees. With the amount of work required of
young attorneys, stepping back and examining the big picture is not
expected or even realistic. However, as an attorney progresses through
stage five, this type of long-term strategic thinking, both on behalf of
clients and the firm itself, is a must.
 Proactive management. The stage five attorney must be aware of
himself, his peers, firm leadership and team members, anticipating
issues before they arise. By honing these management skills, a midlevel
partner can focus on preventing fires, rather than putting them out once
they’ve already sparked.
 Strategic understanding. A stage five attorney needs to develop an
understanding of the strategic needs of the clients and their industry, as
well as how these developments affect the firm’s strategic goals.
 Factoring all aspects of the team and client needs into strategic
thinking. This is one of the hardest skills to master for any attorney –
with three distinct but related entities at play (the client, the individual
team members and the firm), keeping everyone happy can be a
challenge to say the least. Determining how to keep all parties positive
and motivated is often more art than skill, but a required part of mid- to
senior-level partnership. As a corollary to this, the ability to make
trade-offs that support client strategy, firm profitability and competitive
advantage, rather than just supporting success in an isolated matter, is
also a critical skill to master at this stage.
For some attorneys, stage five is the end of the road—not every partner can
advance to leadership and management roles within the firm nor does every partner
want to. A naïve view of career progression is the straight arrow, always climbing
upward, further and further. This simply is not realistic for the vast majority,
considering how little room there is at the top of the pyramid; and even less likely in
the relatively flat organizational structure of the modern law firm.
Does this mean one simply stops, content to “retire in place?” The notion that
only people at the top of the pyramid lead, and everyone else follows, is both wrong
and counter-productive for everyone involved. Leadership is a quality and a state of
mind that every professional should exhibit at every stage of one’s career. A senior
associate can guide more junior associates, senior partners can lead those more junior
and peer leadership is a fact of life in modern organizations. There will always be
opportunities to step up and be a leader: to help others facilitate the goals of the
client, the practice or the firm.
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This ability to “lead from the middle” is particularly relevant in law firms. It
represents the opportunity that any knowledge worker has to show initiative,
leadership and mentorship to others at any stage in one’s career. Leadership is a state
of mind, not simply a box on an organization chart.
STAGE VI: PRACTICE LEADER
While managing a practice group may be likened to herding cats, it is a necessary
part of management and a critical factor in a firm’s success.
...being a successful attorney also requires managing your public persona and
maintaining calm in the midst of what will undoubtedly be hectic times.
For those individuals who do advance beyond step five on the ladder, practice
leadership represents stage six of an attorney’s career. While managing a practice
group may be likened to herding cats, it is a necessary part of management and a
critical factor in a firm’s success. Thus, with great power comes great responsibility.
A practice leader is responsible for managing a particular function within the
firm, including profit and loss accountability, personnel management and client
relationships, in addition to the rainmaking and broader business responsibilities
outlined above. Skills expected of a stage six attorney include:




Conceptualizing a practice and selling it. It is not merely enough for a
stage six attorney to say, “I manage the firm’s X practice,” she must be
able to articulate the particular benefits of the practice to a given client
or prospect as well as her firm’s competitive advantage. Selling the
practice is an important piece of leadership—almost as important as
keeping the ship afloat.
Managing costs and revenue. Ultimately, practice leaders are expected
to manage a business unit within the firm, complete with profit and loss
accountability.
Looking at the practice as a business. Managing the business of one’s
practice goes beyond the finances. A practice leader must endeavor to
increase competitive advantage and position the practice as a leader in
the marketplace.
Developing a sense of ownership about the practice. While the vast
majority of newly appointed practice leaders will be filling someone
else’s shoes, there is great opportunity—and need—to make the
position one’s own.
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
Managing complexity. Every practice consists of multiple personalities,
diverse individuals, cross- functioning teams and complex processes. A
stage six attorney must master the subtleties of each and manage the
interconnectivity in order to create and promote a successful practice.
 Being highly visible. The visibility at this stage can be intense and quite
different from any role the attorney has yet experienced. A stage six
attorney serves as the face of the practice to others within the firm, both
above and below, and the face of the firm to external audiences.
Practice leadership, just like every other stage, requires the mastery of a unique
set of skills and an intense learning process. But unlike nearly every other stage,
being a successful stage six attorney also requires managing your public persona and
maintaining calm in the midst of what will undoubtedly be hectic times.
STAGE VII: DIVISION LEADER
... A division leader is intimately involved in the day -to -day operations and issues
of the firm as well as top -level client involvement.
The next step for some attorneys is that of division leader—stage seven. In
larger firms, practices are grouped into divisions (if practicing at a smaller firm, there
is often no differentiation between stage six and stage seven); a division leader is
intimately involved in the day-to-day operations and issues of the firm as well as toplevel client involvement. The stage seven attorney is part of the management
coalition, but usually not yet part of the ultimate management team, and requires
mastery of the art of leading near the top. The “leading from the middle” skills
learned as part of the stages four, five and six will need to be relied upon and grown
as an attorney continues to progress up the management ladder.
The division leader could come in any one of a number of roles or titles: Group
Managing Partner, Office Managing Partner, Practice Leader with Portfolio, for
example. While each of these specific roles comes with its own set of challenges
(managing several practices, management of a regional office, large practice
management with significant additional responsibilities, etc.), the transition is often
the same. A stage seven attorney often progresses from a leadership position that she
found the most fun to one that she finds the least. However, this challenge is
ultimately a test for Managing Partner potential.
To be a successful division leader and make the leap to Managing Partner, a
stage seven attorney must master these skills:
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
Allocating limited firm resources among competing practice areas.
Managing several practice groups or business units within the firm
often requires making tough choices. The successful stage seven
attorney not only makes these decisions, but also has the ability to
communicate well with individuals affected by these choices in a
forthright and trustworthy fashion.
 Creating horizontal synergies among practice areas and leading
initiatives. Cross-selling and cross- promoting is a part of earlier stages,
but with increased business objectives and responsibilities, finding new
ways to sell practice group offerings and services to both existing and
prospective clients is required. This often manifests itself in new firm
programs or initiatives and carries both risk and reward.
 Cultivating and managing leaders. Ultimately, a stage seven attorney
will be judged at least in part based upon the work others do. Thus, it is
important for a division leader to develop and manage the leadership
skills of the practice leaders and mid- or senior-level partners whose
performance will reflect on him.
 Making sure the group practices tie into firm-wide goals. While
managing a group or collection of practice units may seem like an
isolated process, it still must be done within the context of the firm at
large. Keeping in close contact with the firm’s managing partner and
management committee to ensure that these firm-wide goals are being
addressed and met is advisable.
 Managing the unanticipated. A division leader must master the ability
to strategize and anticipate needs and opportunities before they arise or
be prepared to jump into the breach when a new challenge arises.
The stage seven attorney has myriad balls to juggle—managing both down and
up the career ladder, balancing the needs of many stakeholders (clients, practice
teams, firm management, etc.) and proving herself worthy of advancement to
managing partner status.
STAGE VIII: MANAGEMENT COMMITTEE MEMBER
Usually, before an attorney progresses to the level of managing partner, he
joins the firm’s management committee. This entails ultimate enterprise
responsibility to multiple constituencies and leading from the top. Often stage eight
will overlap with stage seven; that is, group or division leaders (and sometimes
practice leaders) are typically members of a firm’s management committee.
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What makes an attorney’s duties as part of the management committee unique
are the expectations and shift of focus almost entirely away from client management.
As a stage eight attorney, some of the skills to develop are:
1. Delivering consistent, predictable top and bottom-line results.
Inconsistency is one of the killers of career progression at any level. In
order to reach this stage in one’s career, an attorney will have likely
demonstrated consistency in work ethic, performance and results
throughout her career—now, though, this must be expanded to include
business results, not just work product.
2. Setting enterprise direction. A stage eight attorney is expected to think
strategically and develop a road map for the firm’s future, ensuring not
just survival but growth in the years ahead. This includes shaping the
soft side of the enterprise, maintaining an edge in execution and
managing the enterprise in a broader, global context.
3. Understanding how the firm serves its key clients. Understanding client
needs is a skill mastered as an early stage attorney, but understanding
what this means for the firm is an integral part of being a management
team member.
4. Balancing between an inward and outward focus. Management
Committee (sometimes referred to as the “Executive Team” or
“Executive Committee”) members are responsible for real world
business results, but this does not mean their focus can be entirely
external. Part of business success is a focus on internal firm health,
through staffing, professional development, training and creating a
culture of success.
Much like stage seven, management committee membership serves as a
barometer for leadership skills. The ultimate decision makers are looking for those
who go beyond merely juggling the many stresses of management, thriving under the
pressure and pushing the firm forward. Conversely, some of the red flags or warning
signs of leadership transition issues include uninspired communication, an inability
to assemble a strong team, problems with time management and prioritization,
failure to grasp how the business can increase (or even maintain) revenue flow and
neglect of the soft issues such as professional development or team functioning.
Compensations issues are often handled, or approved, at this level. Here the
challenge is to adopt compensation strategies that are best for the firm, rather than
for any one individual. It is not unusual for someone at this level to advocate higher
compensation for other contributors than for himself. Those who use their power to
increase their own compensation selfishly run the risk of losing credibility as a leader
of the firm.
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Stage eight, in actuality, is probably more abstract than real–it represents a
crucial mindset that a true leader and owner must have. The reality is that, in all but
the very largest firms, those who serve on the management committee also hold
division or practice leadership roles. However, it is important to be clear that the
roles are different, with differing, and at times competing, priorities. One can do
both, but it is important to realize that roles—and objectives—are different.
STAGE IX: MANAGING PARTNER
...The managing partner has ultimate firm responsibility, oversees day-to-day
operations, is responsible for firm finances, oversees staffing —in short, everything
required to run a business.
Congratulations, you’ve made it! Attaining the role of managing partner (or
CEO, president, etc.) is truly an exceptional achievement. Growing upon what one
has learned during the previous eight stages, the managing partner has ultimate firm
responsibility, oversees day-to-day operations, is responsible for firm finances,
oversees staffing – in short, everything required to run a business. By putting the
right people in place in senior leadership roles, many of these duties are delegated,
but responsibility ultimately lies at the top.
It should be remarked that being the top professional in a law firm is
challenging in part because one is managing peers. The notion of partnership implies
a group of equals. While it is tempting to think in terms of traditional hierarchies,
partnerships are typically a different kind of organizational “animal.” They require a
deft and subtle hand when it comes to managing and leading a firm of one’s peers.
Trustworthiness and integrity are often the cornerstone requirements for someone to
successfully achieve and hold this position. If these are not abiding characteristics of
the leader, the firm’s culture rests on shaky ground and the leader can only maintain
his or her position by unhealthy means.
While there are no additional skills to master during stage nine—presumably
any attorney who has climbed this far has tackled most of the challenges he has faced
thus far—this does not mean that the ride is over. There are still issues to be faced
and questions to be answered, although these are generally more personal in nature:



Considering alternative career paths, including in-house counsel,
politics, judiciary, etc.
Deciding when to leave and when to tough it out.
Life after the firm.
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New books with titles like “Seventy is the New Fifty” are appearing frequently;
people are living longer and, coupled with the fact that many attorneys have made
enough money to retire comfortably, it raises the question, “What’s the next act?”
For some it will be life on the golf course, or on a boat, or in Boca, but for many this
will not be enough. Everyone has a story of the partner who comes into the office
regularly, dressed in full business regalia, well into his 80s or 90s. While these
scenarios work for some, they do not work for many.
Erik Erikson, the famous psychoanalyst, suggested that later-stage
psychological development comprised a stage of “Generativity vs. Despair” in which
one retrospectively considers the good, the bad and the ugly of one’s life and career.
But just as adolescence is a time to re-work the early stages of development, later life
may be an opportunity to re-work mid-life stages of intimacy and productivity. It is a
chance to usher in a second act that could be as fulfilling, if not more so, than the
first.
Many retirees are finding meaning and fulfillment in volunteer careers that
enable them to give back and not concentrate exclusively on making money or career
progression. It is a chance to more fully align with closely held values, to give back
to the world on one’s own terms and in ways that are more fulfilling. Our society has
long neglected the potential continuing contributions of the elder generation. What if
people spent as much time and energy preparing for their “retirement career” as they
do for their “work career?” It opens the door to many interesting and exciting, not to
mention deeply gratifying, opportunities.
CONCLUSION
I’m sure you know someone who feels like their career has stalled—someone
who is seemingly “stuck” in one of the nine stages outlined above. Hopefully this
paper provides an outline of the skills an attorney must master and the challenges
that attorney faces while attempting to reignite the spark into his or her career.
Identifying which phase an attorney is in and determining what skills are
needed to advance is sometimes harder than it seems. But while every firm is
different in its specific requirements for advancement and the sometimes intangible
qualities it looks for, the “seasons” of an attorney’s life remain somewhat constant.
So next time you encounter an attorney who feels stuck or stalled, I challenge
you to think back to this paper, identify where in the life-cycle that attorney is, and
help him or her identify, attack and master the challenges he or she faces.
Trained as a clinical psychologist, Mark Sirkin has had post-doctoral training and experience
in organizational consulting and development. He has worked in small and large consulting firms
with businesses ranging from modest family businesses to Fortune 10 organizations, and developed a
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specialty in enhancing the human capital in organizations through coaching, consulting and training.
Mark is a contributor to the Leadership and Organization Development Practice of Hildebrandt
Baker Robbins, a Thomson Reuters business, where he advises law firms on issues related to talent
development at every level in the firm.
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