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Volume 48, Number 6 (August 2001) reprinted by permission of the author and Law Review EMBODIMENT OF EVIL: LAW FIRMS IN THE MOVIES Michael Asimow* Most American lawyers now practice in law firms, ranging from small partnerships to immense multinational megafirms. In the movies, lawyers in solo practice have often been presented favorably, but when lawyers band together into law firms, the firms are almost always portrayed unfavorably. Recent films involving larger law firms, such as The Firm, The Devil's Advocate, or Philadelphia, have been venomously negative. Professor Asimow traces the history of law firms in film, concentrating particularly on Orson Welles's noir masterpiece The Lady from Shanghai, which he believes invented the idea that law firms are an embodiment of evil. Asimow contends that the explanation for the rash of harshly negative big-firm movies lies both in the public's evident distaste for lawyers in general (and for law firms in particular) and in the traditional anti-business theme in film narrative. He sketches the history of the big law firm and contends that the world of big-firm law practice has swung sharply in the direction of a business model rather than the traditional professionalism model. Finally, Asimow contends that in several respects the depiction in contemporary films of large firm life and law practice is fundamentally on target. In particular, the treatment in the movies of lawyer life style, billing improprieties, and hardball litigation tactics appears to be essentially correct.
Movies accurately reflect the public's dismal opinion of law firms. During the seventy years of the sound era, filmmakers have often presented lawyers in solo practice as decent human beings and as excellent lawyers, although that is much less true in the last thirty years than in the first forty.5 Once movie lawyers join together into law firms, however, they are portrayed quite negatively, regardless of the era. In film, lawyers who practice in small law firms are worse than solo lawyers, and big firms are much worse than small firms. Judging by what we are taught in the movies, lawyers in firms (especially large ones) are miserable, bigoted, materialistic people. Despite their wealth and beautiful cars and homes, they have mostly unhappy personal lives and dysfunctional families. As lawyers, they are greedy, heartless, predatory, unethical, and often buffoonish or incompetent. This Article addresses the negative portrayal of law firms in film and compares law firms depicted in movies with those of the real world. It asks whether real law firms, especially big ones, could possibly be as bad as reel law firms. This Article situates itself in the expanding scholarship of law and popular culture. The law and popular culture movement takes seriously works of popular legal culture,6 meaning stories about law, lawyers, or the legal system in film, television, or print. It treats these cultural artifacts as legal texts, as important in their own way as statutes, administrative rules, or judicial precedents. Those who write in this field believe that the public learns most of what it thinks it knows about law, lawyers and the legal system from the works of popular legal culture. They believe that information or misinformation gleaned from popular culture has a significant impact on "law" in the legal realist sense: what judges, jurors, attorneys, legislators, voters, and ordinary consumers or producers actually do in their contracting, fact-finding, law-applying, and law-making functions. They are convinced that popular culture mirrors, often in an exaggerated and caricatured form, actual popular attitudes and beliefs about the institutions and characters that it describes. Finally, they believe that lawyers can benefit from studying the ways they are portrayed in popular culture, because the issues addressed in popular culture media are often serious ones for the profession. In Part I, the Article opens with a descriptive account of law firms in film and on television. In Part II, the Article sketches the evolution of big law firms and the steady slide from the professional model of law practice to the business model. Part III asks why big law firms are so negatively presented in film and Part IV assesses whether any or all of that negative treatment is justified. The Article concludes that in several respects the negative treatment of law firms in the movies is accurate. Movies correctly reflect the marked shift of law practice from a professional model to a business model. The descriptions in current film of the working life of associates, law firm billing improprieties, and hardball litigation tactics seem justified. The Article also concludes that the description in the movies of big firm ethical improprieties may be inaccurate, but it is difficult to say for sure. The classic film Counsellor at Law9 is both the first film about law firms and one of the very few to treat law firms in a balanced manner. The New York City law firm of Simon & Tedesco is profitable and successful. In addition to the named partners, the firm employs an associate, an office manager, secretaries (some of whom function as paralegals), and a receptionist. The film takes place entirely in the beautiful art deco offices of Simon & Tedesco. Even though the two partners are litigators, we see them only in the office, never in court. George Simon (John Barrymore), the protagonist, is an up-from-the-gutter Jew who has achieved high social standing, established a prestigious uptown law practice, and married a snooty gentile woman. Yet he still has one foot in the lower east side. During the course of the film, we meet a broad array of Simon & Tedesco's clients and learn about a multitude of legal problems, both criminal and civil. Simon is a talented and tenacious lawyer and a loyal friend. His personal life, however, is a shambles. On several occasions, Simon shades ethical rules, and one such lapse gets him in deep trouble. Notably for this Article, there is nothing evil about Simon & Tedesco. The lawyers treat their employees well. The partners are not cutting each other's throats and they are not ripping off their clients (well, not too much anyway). Instead, they are mutually supportive. A more typical example of a bad law firm during the 1930s and 1940s was Cedar, Cedar, Cedar & Budington, the heavies in the delicious Frank Capra comedy Mr. Deeds Goes to Town.10 The firm had stolen about half a million dollars from the estate of Mr. Deeds's deceased uncle. One of the Cedars attempts to have Deeds (Gary Cooper) declared incompetent to prevent him from interfering. Deeds, of course, outwits them. The story is played for laughs, but there is no doubt that the law firm consisted of a bunch of crooks. A common pattern in films of this era involved young lawyers who were associates in law firms and wished to defend criminal cases or take on other discreditable matters. The partners decide this kind of work is bad for their upscale image and dump the associate.11 Generally law firms seem very focused on making money and dislike taking pro bono work.12 Honest lawyers can be corrupted once they join with other lawyers and start a firm.13 On the whole, filmmakers presented the small law firms of the 1930s and 1940s in a quite negative manner.14 These harsh portrayals of law firms contrasted sharply with the overall treatment of movie lawyers, which was, on balance, quite favorable. 2. The Lady from Shanghai The law firm as a metaphor for evil was largely an invention of Orson Welles in his surrealistic noir classic The Lady from Shanghai.15 Welles adapted the screenplay from a novel,16 and directed and starred in the film. Welles plays Michael O'Hara, a strong but rather gullible merchant seaman of liberal sympathies who falls for the bewitching Elsa Bannister (Rita Hayworth). Elsa's husband, Arthur Bannister (Everett Sloane) is said to be the best criminal lawyer in America. Bannister's law partner is George Grisby (Glenn Anders). In typical noir style, O'Hara is sucked into a complex conspiracy in which Grisby as well as Elsa and Arthur Bannister are all apparently trying to deceive and kill each other. This remarkable film ends with one of the most famous scenes in film history - the legendary shootout in the hall of mirrors at the funhouse. Our concern here, however, is the portrayal of lawyers Arthur Bannister and George Grisby.17 While the plot of The Lady from Shanghai is rather obscure,18 there is nothing obscure about the way the lawyers are portrayed. They are two of the most disgusting, reptilian lawyer characters ever put on film. Bannister is crippled; he walks with two canes and is supported by leg braces. Welles obviously intended this disability to make Bannister seem repellent.19 Both Bannister and Grisby dress inappropriately; they wear business suits and sweat copiously while cruising the Caribbean in boiling weather. Again, this makes them seem weird and alien. Both are often drunk. There are strong hints that Bannister is impotent and Grisby is gay, which would cause a 1948 audience to despise them. Both have creepy, whiny voices. Throughout the film, Bannister abuses everyone around him. He is invariably cynical, condescending, and cruel. He mercilessly taunts his helpless maid Bessie and loses no opportunity to ridicule O'Hara, Elsa, and Grisby. He makes it clear that he cares little for anything except money and power.20 Grisby is no better. He is a voyeur and is as abusive as Bannister to everybody around him.21 He is busily engaged in a plot to fake his own murder so he can somehow collect the life insurance and supposedly disappear to the South Seas to get rid of his non-existent wife and avoid the upcoming nuclear holocaust. He hates Arthur and Elsa Bannister as much as they hate him. Worst of all, from Welles's perspective, he is pro-Franco. Late in the film, O'Hara goes on trial for the murders of Grisby and a private detective, and Bannister represents him. Welles seizes the opportunity to parody traditional courtroom movies. A juror keeps sneezing. The prosecutor (Galloway) is as snarly and nasty as Bannister himself, and the judge is a nitwit. Bannister and Galloway constantly scream at each other. Galloway calls Bannister as a witness and Bannister then cross examines himself to the amusement of all. O'Hara, of course, is innocent of the crime. Grisby killed the detective and Grisby was killed by Elsa with Bannister as a witness (or possibly the other way around). Needless to say, Bannister never discloses his personal knowledge of the critical events. The undisclosed information would exculpate O'Hara, while it would incriminate Bannister and Elsa. Thus Bannister has the ultimate conflict of interest - he seeks to have his client convicted to cover up his own involvement in the crime. As they wait for the verdict, Bannister tells O'Hara that this is one trial he would like to lose - and he does everything possible to insure that result. He wishes O'Hara a long life on death row before he is executed. O'Hara then escapes from the courtroom and flees, setting up the dénouement in which Elsa and Arthur kill each other in the hall of mirrors. O'Hara summarizes his feelings toward lawyers after listening to Bannister and Grisby taunt each other. He remarks that he had once seen a pack of sharks so crazed by blood that they started devouring each other. After this spasm of insane violence, all of the sharks were dead. However, he had never before seen people act that way.22 Most of the essential plot elements in the film are also in the novel; indeed, the novel's narrative is much clearer. The differences, however, are revealing. Welles renamed the protagonist, Laurence Painter, as Michael O'Hara in the film; he gave O'Hara a thick Irish brogue and a set of political views that resemble those of Welles himself but which are wholly absent in the novel. The lawyers in the film are much more vicious than in the novel. In the book, Bannister is crippled, but he is mostly on the level. He does not have a conflict of interest when he represents Painter in the murder trial and he is not trying to throw the case. Grisby wants to fake his own murder so he can run off with Elsa, but aside from manipulating Painter into taking part in the ill-fated scheme, he doesn't appear to be personally repulsive. There are no scenes in which the lawyers sit around and taunt people or carve each other up. Elsa (who doesn't come from Shanghai) is, of course, every bit as vicious in the book as in the film. Thus, in adapting the novel, Welles made a conscious decision to intensify the negative portrayals of the lawyers, making both of them unethical creeps. The Lady from Shanghai established the law firm in Hollywood iconography as the embodiment of evil. Law firms, it seems, consist of lawyers who are repulsive and lacking in human virtue. They are greedy and manipulative, they hate each other, they drink too much, and they generally seek to cheat or even to murder their partners. Although most of the law firms in films preceding The Lady from Shanghai are presented negatively,23 there is nothing that approaches the venom with which Welles portrays the firm of Bannister & Grisby. B. Films of the 1950s and 1960s During the 1950s and 1960s, the vast majority of the lawyers in film were favorably portrayed, but law firms were usually portrayed more negatively than solo lawyers.24 Even at their best, the movie law firms of these decades consist of a bunch of fuddy-duddy old partners who try to prevent younger lawyers from engaging in any sort of unconventional behavior.25 For example: (1) In By Love Possessed,26 Arthur Winner is a fine lawyer and family man but one of his partners is a nasty fellow who is both crippled and impotent (reminiscent of Arthur Bannister). The other partner, who is the respected patriarch of the firm, conceals a huge theft from a trust of which he is the trustee. (2) In The Big Hangover,27 the partners of a small firm humiliate an associate; worse, they are unethical and racist. Having promised the city attorney that they will not interfere with a Chinese doctor becoming a tenant in a client's real estate development, they scheme to move another tenant into the property "by mistake," so the doctor will have no place to go. (3) In Young Man with Ideas, 28 a young associate receives no recognition for his outstanding work in preparing for a major trial. The partners hog the glory. The partners and their wives are snooty and condescending. The associate is fired after he asks to be made a partner. C. Films of the 1970s, 1980s, and 1990s During the past three decades, the vast majority of movie lawyers were portrayed in a negative light.29 When those lawyers practiced in firms, the treatment became quite vicious. As in previous decades, small firms continue to take a bad rap; the lawyers are unpleasant and greedy.30 Small-firm lawyers treat their associates and staff badly31 and some are total buffoons.32 A few films treated small firms in a neutral manner, neither positively nor negatively.33 The only half-way decent law firms we encounter in films of the last thirty years are small ones that oppose much bigger firms.34 Even filmmakers understand that a solo lawyer cannot possibly muster the resources to fight big firm scorched-earth litigation tactics. Even in these small firms, lawyers' ethics are sometimes dubious,35 and the lawyers sometimes treat their clients badly.36 Aside from these Davids in combat with Goliaths, just about the only good lawyers we see in this period are the ones who practice by themselves. During the last three decades a fundamental change emerged in law firm movies: the firms got much bigger. It dawned on filmmakers that law firms were increasing in size and power and presented an alluring target. In almost all cases,37 movie megafirms resemble the school of self-devouring sharks described in The Lady from Shanghai.38 Some or all of the lawyers in large law firms are miserable human beings and greedy, unethical, uncaring lawyers.39 Big firms are money machines run by greedy old men that eat their young, and are horrible places to work for halfway decent human beings. In conducting litigation, big firms always deploy their superior resources to unfairly thwart righteous claims brought by their adversaries. Big firms are always on the wrong side - generally that of the vicious corporation rather than the deserving plaintiff. Some big-firm lawyers are utter fools. Let's look at some of the more interesting law firm-trashing films of the last thirty years. 1. The Verdict The Verdict40 is about a medical malpractice case. The client entered a hospital operated by the archdiocese of Boston to have a baby. Something terrible happened during anesthesia, and she left the hospital in a vegetative state. Plaintiff's attorney Frank Galvin (a solo practitioner played by Paul Newman) is certainly no bargain. He is a hopeless alcoholic, an ambulance chaser (he hands out his business card at strangers' funerals), he neglects the case until ten days before trial, he takes no depositions, he turns down a settlement offer without consulting his clients, he blabs about the case to his girlfriend, he handles the trial ineptly, and he commits various other sins. By virtue of astounding good luck, by breaking into a mailbox, and by delivering an eloquent closing, he salvages victory in a case he has done everything humanly possible to lose. But Galvin, at least, has a good heart, unlike the defense lawyer who represents the archdiocese. Lawyer Ed Concannon (James Mason) is a partner in a large corporate Boston firm that shares palatial quarters and employs servants in livery. Someone describes Concannon as the devil incarnate, and he does everything possible to live up to the description. Concannon pads the client's bill by vastly overstaffing the case; he conducts conferences and witness preparations with every young lawyer in the firm present. He bribes the plaintiff's expert witness to disappear at the last moment so that Galvin has to scavenge for a new expert (who turns out to be incompetent). He employs Laura Fischer, a lawyer who has taken a leave from his firm and wants to return, as a sexual spy. Fischer seduces Galvin and steals all the secrets of the plaintiff's case while sharing Galvin's bed. Concannon somehow has tucked Judge Hoyle in his pocket; Hoyle conducts the settlement negotiations and presides over the case in a blatantly biased fashion. In a late-night conversation, Concannon slips Fischer a check to pay for her work as a lawyer-prostitute. He also articulates his "philosophy" of law practice. He explains that as a young lawyer, he told a partner that he had done his best, but the partner told him that he was not paid to do his best, he was paid to win. Concannon took that advice to heart and ever since he has done whatever it takes to win. Winning, he explains, is what pays for the luxurious offices and the pro bono cases the firm handles, for Fischer's fine clothes and for Concannon's whiskey. He declares to Fischer: "You wanted to return to the world. Welcome back!" No scene in any film has better encapsulated law as a filthy business rather than as a profession. The Verdict was a landmark film that set the agenda for the treatment of big firms during the remaining years of the twentieth century. 2. Class Action Class Action41 involves a product liability claim based on an exploding gas tank in the Argo Meridian, a disaster on wheels not unlike the notorious Ford Pinto. We learn that Argo knew about the risk that the Meridian's gas tank would blow up in an accident if the turn signal was clicking, but figured it was cheaper to leave the design alone and pay the occasional damage claim. On the plaintiff side is Jedediah Ward whose small firm specializes in personal injury cases, especially products liability. Jed is pretty tricky, but he basically plays by the rules. Representing Argo Motors is a San Francisco megafirm that will do just about anything to win. Jed's daughter Maggie Ward is a senior associate at the firm and is heavily involved in the Argo case. Maggie has a miserable personal life. She hates her father. She despises her work and drinks herself to sleep. She's having a secret affair with Michael, a young partner who deviously manipulates her. But the Argo case is the key to partnership, so Maggie does whatever she is told to do. On the instructions of the senior partner, we see her viciously and pointlessly browbeating a deposition witness who suffered horrible burns from an exploding Meridian and whose entire family was killed in the fire. The plaintiffs request a test report on the Meridian that shows Argo knew about the exploding gas tank problem. Again acting under instructions from the senior partner, Maggie and Michael thwart discovery by burying the document in truckloads of extraneous paper. Maggie reluctantly participates in deliberately misindexing the document so it cannot be located in the paper blizzard. In fact, unknown to Maggie, Michael removes the document entirely from the material sent to the plaintiffs, just to make sure it will not be found. He also destroys Maggie's copy of it. In the end, Maggie sells out her client by secretly switching sides. In the process, she knowingly causes Michael to give perjured testimony in order to discredit Argo by showing that his testimony was false. 3. John Grisham's View of Big Law Firms: The Firm and The Rainmaker John Grisham has made a very profitable business of trashing law firms.42 Just about the only decent human beings and ethical lawyers to be found in Grisham's books43 are law students and professors,44 legal service lawyers,45 lawyers who work for free,46 and young lawyers just entering the profession who have yet to be tainted by it.47 Even these worthies sometimes have to resort to skirting (or outright breaking) the rules of ethics (as well as the criminal law) to defeat their adversaries.48 However, the lawyers in Grisham's law firms are sharks; their clients are cold-blooded profiteers and white-collar criminals. Two of the best examples, The Firm49 and The Rainmaker,50 have been filmed and will be discussed presently. But in books that have yet to be adapted into films, Grisham consistently trashes law firms (both big and small).51 Consider these examples:
What is that the firm turns out to be a well-concealed subsidiary of the Mafia, up to its ears in every sort of white-collar and blue-collar criminality. The partners employ hired killers. Associates who catch on and try to leave are murdered. Confronted with proof of all this, McDeere joins forces with the Department of Justice. The message is quite clear: Law firms are criminal enterprises, even though they have beautiful offices and the partners dress nicely. In The Rainmaker, Rudy Baylor (Matt Damon) graduates from Memphis State Law School. A big law firm offers him a job, but it cruelly and unethically reneges at the last minute. The only job he can find is with Bruiser Stone. Bruiser also employs paralawyer Deck Shifflet (Danny DeVito).57 The firm is obviously engaged in a range of illegal activity. Deck teaches Rudy the fine points of ambulance-chasing and Bruiser vanishes to the Caribbean just ahead of the Department of Justice. Hoping to continue eating after their jobs evaporate, Rudy and Deck pursue a case that Rudy turned up in the law school's clinic. It is a bad faith claim against a health insurance company that refused to pay for a dying young man's bone marrow transplant. In fact, as Rudy finally learns, the company never pays benefits to any of its insureds; it just collects premiums and stonewalls.58 Implausibly, Rudy and Deck manage to take this case to trial and, with the help of a sympathetic judge, aggressive investigative work, and good luck, they win it big time. Unfortunately, the insiders have looted the insurance company, which files for bankruptcy, so neither the lawyer nor the client will collect anything. At that point, Rudy disappears into the sunset with a young woman he had been sleeping with and representing. Incidentally, Rudy killed her ex-husband with a baseball bat, lied to the police, and let her take the rap. He left because he was already fed up with law practice; after all, "each time you try a case, you step over the line. You do it enough times and you forget where the line is." Rudy is up against a big firm representing the insurance company led by Leo Drummond (Jon Voight). In typical Grisham style, Drummond's firm will do anything to win. Various tactics include stalling the case in the hope that the plaintiff will die, tapping the phones in Rudy's office, causing employees to disappear on the eve of their deposition, and turning over the claims manual with the key pages removed (the ones about how employees should give claimants the old run-around and always deny their claims). Some of these sins might be attributable to the client rather than the lawyer; it is never clear how much the big-firm lawyers actually know. Just for good measure, the film tosses in a couple of rather nasty lawyer jokes. 4. Regarding Henry In Regarding Henry,59 we meet Henry Turner (Harrison Ford), an arrogant, philandering type-A partner of a large defense firm, as he delivers a killer closing argument in Mitchell v. East Shore Hospital, a medical malpractice case. The plaintiff says he told the hospital he had diabetes; the hospital staff denies it. Just his word against theirs, Turner assures the jury - and then there is the plaintiff's alcoholism. The lawyers celebrate their great victory back at the firm. Turner is shot in a convenience store, suffers brain damage and memory loss, and goes into a prolonged rehab. Ultimately, he gets his speech back and returns to work at the firm. He examines his own file of the Mitchell case and discovers evidence that Mitchell did inform the hospital staff of his diabetes. Obviously, Turner knew this and suppressed the evidence in discovery and during the trial. When he calls it to the attention of his fellow partners, they scoff. Big deal, they say, that is what pays for our lunch. Just another set of big firm sharks routinely engaging in dirty litigation tactics. And they will not let Turner go near any more of his old case files. Who knows what he will turn up next? 5. Philadelphia Philadelphia60 involves a big Philadelphia law firm that discharges a senior associate named Andrew Beckett (Tom Hanks). Beckett says he was fired because he has AIDS - a violation of federal antidiscrimination law. The firm says they fired him because of sloppy work - even though they had just assigned the vitally important High-Line case to him before discovering his affliction. To justify the discharge, they concoct a phony story that Beckett lost the complaint in the High-Line case, almost causing the firm to miss a critical filing deadline. It is clear that senior partner Charles Wheeler (Jason Robards), once Beckett's mentor, is homophobic, especially around someone with full-blown AIDS. Therefore, he orchestrates the lost complaint pretext and fires Beckett. The firing scene shows law firms at their hypocritical worst. Beckett cannot find anybody in Philadelphia to take on the powerful firm in a discrimination lawsuit. Finally he persuades solo practitioner Joe Miller (Denzel Washington) to overcome his homophobia and take the case. Throughout the trial, the law firm is shown in the worst possible light. On the stand, the partners falsely deny suspecting that Beckett had AIDS and they lie about the quality of his work. Their lawyer, Belinda Conine (Mary Steenburgen), adopts a condescending manner and she criticizes Beckett's lifestyle choices - just the wrong approach in a case in which the jury's sympathy lies with the plaintiff. Thus we learn that big firms are viciously homophobic, even turning against their best lawyers when they are found to be gay or to have a fatal disease. Naturally, they do not hesitate to lie in order to cover their tracks. 6. From the Hip Because he is desperate for trial experience instead of library assignments, associate Stormy Weathers uses trickery to have an assault case assigned to him instead of a partner in From the Hip.61 He and opposing counsel cooperate to turn the trial into a ridiculous charade. Weathers's firm wants to fire him for incompetency. Instead, they make him a partner one year out of law school because his antics brought in so much business that it increased partner profit shares by $ 28,000. The firm assigns him a death penalty case they are sure he will lose so they can get rid of him. Grudgingly, they admire his destruction of the courtroom furniture during his opening statement. Because he decides his client is guilty, he provokes the client to make an enraged outburst in court so he will be convicted. This film shows that the work done by associates is unbearably tedious, that big-firm lawyers are highly unethical, and that the partners are greedy, stupid buffoons.62 7. Liar Liar In Liar Liar,63 big-firm associate Fletcher Reede (Jim Carrey) is a pathological liar. He simply cannot tell the truth either to his family or in his practice. His law firm represents Mrs. Cole, who signed a prenuptial agreement promising to remain faithful to her husband. She breached this promise and is in danger of being left with nothing in her pending divorce. The law firm is desperate to salvage something for her (and for themselves) and the only way to do so is to introduce perjured testimony in court. Miranda, the supervising partner, asks a young associate to do it and is turned down. But no problem - Reede is more than happy to do the job. Lying is his middle name. In a brilliant scene, he assures the client that the perjured testimony he has prepared for her is perfectly legitimate; in fact she is really the victim. After the client leaves, Miranda sexually harasses Reede. Reede's little boy casts a spell on his father which requires him to tell the truth. This is a serious professional setback. In one humorous scene, Reede (unable to lie) goes around the table at a partners' meeting and tells each of the partners what he really thinks of them. As he truthfully ridicules each of them, they break up in laughter. But as viewers, we are left with the impression that Reede's firm consists (with the exception of one honest associate) of a greedy pack of liars and thieves. 8. The Devil's Advocate The Devil's Advocate64 carries the idea of law firms as the embodiment of evil to its absolute limit. The antihero is an arrogant young Florida lawyer named Kevin Lomax (Keanu Reeves) who strangely never loses a case. At the beginning, Lomax is a prosecutor, then a defense lawyer who manages to win acquittal for a disgusting child molester (whom Lomax knows is guilty).65 A New York megafirm hires Lomax, first as a jury consultant, then as a litigator. Again, Lomax appears to have almost supernatural powers. He quickly begins to ignore his wife Mary Ann by working inhuman hours. While she has a nervous breakdown, Lomax keeps winning cases through dubious tactics. Meanwhile, we swiftly learn what kind of firm he is working for and the type of clients it represents. It specializes in sleazy transnational deals, weapons smuggling, drug conspiracies, and document shredding. A partner who threatens to rat the firm out to the Department of Justice is mysteriously assassinated. John Milton (Al Pacino), the managing partner of the firm, turns out to be the Devil himself. Why would Satan return to earth as a big firm lawyer? As Milton explains, law practice is "the new priesthood." It's the "ultimate backstage pass" to every sort of disgusting human behavior. Milton, we discover, is Lomax's father. Thus Lomax's miraculous success rate at trial is attributable to his satanic powers. Milton's plan is to mate Lomax to his half-sister in order to produce a whole new breed of lawyer-devils who will win "acquittal after acquittal, until the whole world stinks to high heaven." Here we arrive at the end of the trail that Orson Welles blazed in The Lady from Shanghai: Solo lawyers may be good or bad, but lawyers in law firms, and the firms themselves, are inherently evil. Law firms lie, cheat, steal, and kill to make money and to protect themselves. Their young lawyers toil 'round the clock to make money for the partners. As viewed through the lens of the movies, law firms are, indeed, instruments of the devil. D. Law Firms on Television Surprisingly, the portrayal of law firms on television is totally different from their treatment in film. The most important of the early television law firms consisted of Lawrence and Kenneth Preston, the father and son team on The Defenders.66 This series ran from 1961-1965 and is fondly remembered by the generation of viewers of which this author is a member.67 Each week, the Prestons tackled another major social problem, such as abortion, mercy killing, the anticommunist blacklist, censorship, or racial discrimination. The series also explored a whole range of criminal procedure issues, including the insanity defense and search and seizure doctrine. The show maintained an unabashed liberal sensibility. The Prestons did not solve all the problems, and the shows often left major issues unsettled. However, the Prestons were paragons of personal virtue and ethical commitment as lawyers. How they got paid, if at all, was never discussed.68 Law firms returned to the small screen69 with the highly successful series L.A. Law70 which ran from 1986 to 1994 and continues to run in syndication in many cities.71 L.A. Law concerned a mid-size law firm with partners and associates, a staff of nonlawyers, a varied clientele, civil as well as criminal cases, a beautiful office, and a managing partner who always worried about the bottom line. The show was the first to explore the economic aspects of law practice and the interpersonal dynamics of law firm life. It tackled thorny legal issues and often confronted difficult ethical problems.72 While some of the lawyers were negatively portrayed, particularly managing partner Douglas Brackman and family law specialist Arnold Becker, most of the lawyers were favorably portrayed. On the whole, L.A. Law sent a message to viewers that you could make a lot of money and have a wonderful life-style while working as a team on fascinating legal problems and doing lots of good along the way.73 This benign view of law firms and law practice undoubtedly attracted many young people to law school. More recently, The Practice74 again focused on a law firm, this time a bottom-feeding, scrappy Boston firm. This firm defends a lot of sleazy criminals and often cuts ethical corners. The show deals with the economic realities of small-firm practice - who will make partner, partnership profit shares for rainmakers, collecting fees, escaping from judicial sanctions, whether unattractive clients should be turned away, autocratic decision making by the senior partner, and so on. The lawyers have personal problems, such as finding suitable partners and reconciling their law practices and their personal lives. Their work lives and their personal lives are hopelessly intertwined.75 Yet all of the lawyers and staff members are attractive and sympathetic as they struggle with the sometimes harsh realities and ethical conundrums of small-firm practice. These are people we like, and wish we could be like.76 Ally McBeal is another successful show based on a small law firm. However, Ally McBeal is more of a situation comedy or buddy-type show that could be set in any sort of office environment. The legal content of the shows is usually silly. Mostly the show is about personal relationships and the lack thereof, sexual fantasies, and the bizarre behavior of the various people who work at the law firm. To the extent that it is about a law firm and law practice, Ally McBeal probably makes it seem fun and attractive.77 It is striking how much more favorably law firms are portrayed on dramatic television series than in film. Like other team enterprises such as hospitals, schools, television stations, or police departments, law firms provide a great platform for ensemble casting, extended story lines, and character development that continue over numerous episodes. My guess is that a series needs to be based primarily on a range of characters with whom the audience can empathize. A few unsympathetic or even nasty characters among the regular cast may be acceptable, but we really do not want to invite sleazy people into our living rooms every week. From another perspective, the treatment of law firms in contemporary movies and television may not be so inconsistent. Television series about law firms78 are based on small firms. McKenzie, Brackman had a modest number of partners (around six to eight) and a handful of associates. The matters that McKenzie, Brackman handled, such as estate planning, criminal law, and family law, are much more typical of small firms than of large ones. The firms in The Defenders, The Practice, Family Law79, and Ally McBeal are even smaller than McKenzie, Brackman.80 In contrast, many of the truly ugly law firms in contemporary movies are quite large; indeed, virtually the only law firms that are favorably portrayed in contemporary film are small firms that oppose big firms. Professionalism and Business The world of law practice can be viewed through two different prisms: the professional prism and the business prism.81 Historically, law has been considered a profession. The actual meaning of the words "profession" and "professionalism" vary considerably, depending on who is using them and for what purpose.82 At a minimum, legal professionalism includes at least these core elements: (1) specialized training, (2) knowledge inaccessible to a lay-person, (3) protection against competition under state law, (4) an obligation to place the interests of the client ahead of the interests of the lawyer, (5) a binding code of ethics, and (6) self-regulation. Professionalism is generally understood to include a certain degree of autonomy and independence both from government and from clients. As to relationships with clients, a lawyer is expected to exercise independent judgment with respect to tactical decisions and to influence clients in the direction of more prudent, moral, and responsible behavior.83 Finally, professionalism includes some form of public responsibility.84 What "public responsibility" entails is disputed, but it probably includes at least some obligation (mandatory or aspirational) to provide services to those in need,85 and a set of obligations of cooperation and respect toward justice-dispensing institutions such as courts, arbitrators, or administrative agencies. It probably includes responsibilities toward the profession itself such as serving on bar committees or assistance in continuing legal education. The second way to think about private law practice is that it is a highly competitive, profit-maximizing business like any other.86 It consists of big businesses (large firms) and small businesses (solos or small firms). All competitors in the market aim to deliver services efficiently in order to earn as much money as possible. Under this model, lawyers can and do seek profit by any means short of violating positive criminal or civil laws. In this sense, the codes of ethics that bind lawyers are just one more regulatory law that must be adhered to (but which can often be skirted). Competition between firms for clients and for desirable associates or partners is and should be ruthless and unbridled. Under the business model, lawyers owe no public responsibilities and have no autonomy from their clients. A lawyer earns the maximum profit by assisting clients to do what they want to do. The lawyer should do so without any concern for morality, for the interests of third parties, for the interests of the general public, or even for the long-run interests of the client. The lawyer is expected to extract the maximum possible return from clients and has no responsibility to charge reasonable fees or to work for clients who cannot pay fees. Nor does the lawyer owe any obligation to the profession or to the institutions of justice. Under the profit-maximizing model, a lawyer is expected only to pursue economic self-interest and to adhere to positive law, including binding (but not aspirational) rules of ethics. Both of these models, of course, are oversimplified and reductionist, and law practice has never conformed entirely with either of them. Law practice has and always will contain a strong professional element and a strong business element. The evolution of present-day megafirms can be explained by economic factors87 but it can also be understood as a perceptible shifting of the pendulum toward the business model and away from the professionalism model.88 The business/professional antinomy is helpful not only in understanding the world of present-day law practice but also to interpret the films that tell stories about that world. B. The Evolution of Big Law Firms89 Sizeable law firms emerged in New York City around the turn of the twentieth century to represent large institutions such as corporations or government entities.90 The economic rationales of big firms remain the same today as a century ago. Large firms exist to take advantage of specialization, economies of scale, and leverage. Large law firms employ an array of highly specialized lawyers. This large staff enables such firms to offer clients quick access to sophisticated, experienced lawyers for the entire range of the client's needs. Specialization is also advantageous to individual lawyers who can maximize their human capital and create a competitive advantage over other lawyers.91 Bigness affords such economies of scale as the ability to purchase costly cutting-edge technology and to employ a large corps of nonlawyer staff members (such as office managers, word processors, technology experts, or paralegals) or providers of ancillary services (such as lobbyists). Bigness creates a fluid labor pool of lawyers to meet unpredictable staffing demands, such as complex, high-stakes litigation or a hostile takeover; smaller firms must hire contract lawyers or associate with other firms to meet such crises. Large size also permits synergies to occur between lawyers with different skills and client bases, so that the firm can market new services to existing clients. Leverage is based on paying an hourly wage to legal workers such as associates and paralegals but billing them to clients at a much higher rate.92 This process creates a surplus of partnership profits. To continue extracting a surplus from the associates, the firm must hire more associates to replace those who have left and those who have made partner, thus maintaining the associate-to-partner ratio.93 On the downside, of course, largeness, especially if accompanied by multioffice or multinational branching, may create significant diseconomies of scale. Largeness complicates the management structure.94 It generates a constant need to recruit hordes of new associates. It is likely to increase the difficulty of reaching consensus among partners, and complicates intrafirm communication. It requires that management decisions be made by elite groups of partners, disempowering the remaining partners. Largeness and dispersion magnify the difficulties of monitoring paralegals, associates, and even partners to prevent poor work quality. Largeness magnifies potential conflicts of interest; the more clients a firm has, the more likely the firm is to find itself on both sides. The big-firm economic model worked very well, and firms grew modestly but steadily through the 1960s, spreading from New York to other large cities.95 Firms grew slowly in size. They farmed out most of the litigation business,96 believing that transactional and counseling work was more profitable and more dignified. During this era, big law firms did not function altogether like other profit-maximizing service businesses such as advertising agencies, television networks, or weight-reduction salons. Instead, they were characterized (or at least claimed they were characterized) by the professionalism model more than by the business model.97 For example, advertising of firm services was unthinkable and, in fact, was prohibited by binding ethics codes. Even permissible forms of marketing, such as encouraging clients to switch law firms, were considered bad form.98 Generally, big clients turned over all their legal work to a particular firm and stayed with that firm for generations. Clients seldom questioned bills or took significant legal work in-house. Firms allowed their lawyers to continue practicing in departments that yielded less profit than other departments.99 Lawyers mostly acted in a civil fashion toward their opponents, and an atmosphere of trust among practicing lawyers prevailed. On the personnel side, there was minimal turnover of lawyers. Young associates were recruited from elite law schools. Partners and senior associates took the time to provide excellent training in professional skills and in mentoring. Associates could tag along to meetings and learn the nuts-and-bolts skills of client management or negotiation. Many associates progressed smoothly to partnership. Those who failed to make partner were graciously eased into jobs at lesser firms or in corporate in-house legal staffs. From there, hopefully, they would continue to refer business to their former employer. Lateral hiring of partners (or even of senior associates) was quite rare. Partners could remain with the firm as long as they wished and often practiced part time into extreme old age. Most firms compensated partners in lockstep, by seniority. Members of the public (or even law firm associates) had no information about the details of law firm economics, particularly the size of partner profit shares. Starting in the 1970s and continuing to the end of the century, the institution of big law firms was radically transformed. The law firm world swung steadily in the direction of the business model and away from the professionalism model.100 During this era, client corporations grew much larger and increasingly wanted their law firms to provide one-stop shopping for all legal needs. Corporations felt themselves under siege from rapidly increasing government regulation and predatory tort or class action litigation. Aggressive competitive behavior, such as hostile takeovers, called for massive legal defense and ever-larger aggregations of lawyers to fight the battles.101 Many clients felt that they received higher quality work product from big firms that recruited only high-ranking lawyers from elite schools; others hired big firms to intimidate the opposition. As a result, law firms became much bigger in both absolute and relative terms.102 By 1995, 23 percent of the lawyers in private practice (other than solos) worked for firms having or more lawyers, as opposed to 7 percent in 1980, and the megafirms have continued to grow since then.103 Increasingly, the lawyers in big firms have specialized their practices and the firms have become rigidly departmentalized. Law firm management has become more formalized and bureaucratic. As firms have expanded and bureaucratized, the relations between lawyers have become more impersonal, and less bonded by ties of mutually supportive collegiality and community. Trying to match the competition and to satisfy client demands, big firms branched into other cities and countries. They employed professional business managers and marketing firms and ever-more sophisticated technology. Information about law firm economics and clientele became broadly available.104 Using this information, young lawyers and partners alike left firms for better opportunities. Firms aggressively pruned partners who failed to bring in enough business.105 As partners grew older and less productive, firms "de-equitized" them or subjected them to ever-earlier mandatory retirement.106 Lockstep compensation systems became relatively unusual. Instead, under "eat what you kill" compensation schemes, rainmakers earned much higher compensation than lawyers who did excellent work but brought in little business.107 Power flowed to the lawyers who control the clients.108 Management committees consisting of elite client-controlling partners, not the partners at large, made the critical policy decisions for firms. Lateral hiring of both partners and senior associates became commonplace.109 Entire departments defected to other firms. Law firms often merged, shedding less desirable personnel in the process,110 and quite a few law firms disintegrated entirely.111 Complex business litigation became a profitable specialty, employing droves of attorneys in high-stakes and stressful work. This litigation involves not only defense against tort actions and government regulation but also mammoth fights between corporations. During this period, scorched-earth litigation tactics emerged and became routine in many locales, especially in high stakes cases. Such tactics include unnecessarily protracted discovery and discovery abuse, frivolous and endless motions, and various delaying tactics.112 There was a steady slide towards incivility and distrust of other lawyers.113 Clients became much less loyal than in years past; their relationships with law firms became more like a bargained-for purchase of services rather than a personal relationship. Clients often switched firms,114 employed a firm for only a single matter or specialty, maintained a stable of several firms to do their work, took as much work in-house as possible, required firms to bid for their work, and closely audited the bills. During this period, law firms enhanced their leverage, increasing the ratio of associates to partners, stretching out the time required for partnership consideration of associates, and admitting fewer partners. The firms made extensive use of paralegals, senior associates, of counsels, ancillary staff members, nonpartnership track associates, contract lawyers, and nonequity partners, all to magnify the returns of equity partners. Firms became much more aggressive in seeking business, routinely attempting to attract existing clients of other firms.115 The comfortable world of the 1960s law firms was gone forever. All this was the business model, writ large. To an ever-increasing extent, the bottom line has become the bottom line: law firms unabashedly profit-maximize and perceive virtually any form of competitive behavior as not only acceptable but necessary.116 Returns to partners increased sharply during this period, with some partners taking home over a million dollars per year. Salaries paid to associates soared, causing compensation levels to rise all along the line.117 Billable hour requirements continued to increase, in part to pay the ever-inflating salaries of associates, in part to further maximize the benefits of leverage.118 Feelings of community and inchoate norms of professionalism could not interfere with the imperative that partnership profit shares must be ever-increasing.119 Traditionally, the idea of professionalism entailed the notion of lawyer autonomy - that lawyers play a mediating role, exercising judgment to dissuade a client from making decisions that the lawyer sees as detrimental to the client's long-term interests, even nudging clients toward more socially or morally acceptable behavior.120 Whether many lawyers ever truly acted in this way can certainly be questioned, but autonomy was at least part of the widely shared professional ideology. Today, however, the evidence indicates that even the ideology is outdated. Unless asked for their opinion, lawyers are reluctant to offer it. They see their role as helping to carry out the client's wishes, not telling the client that it is a bad idea. Most lawyers believe that they cannot risk antagonizing important clients by interjecting their own judgment, provided that the actions in question do not actually violate the law or mandatory ethical rules.121 Another traditional ethic of professionalism is that law practice should be imbued with obligations of public service and pro bono work; again, by all accounts, these ideas are dying out.122 Even if some partners wish to sacrifice the highest possible returns in order to achieve other values such as fewer billable hours, serious commitments to pro bono, or sabbaticals, they could not achieve consensus on these objectives; more money is the one thing that everybody can agree on. Indeed, a decision to pay or accept less than the highest possible associate compensation or per-partner profit shares could result in an inability to recruit associates, and an exodus of rainmaking partners to higher-earning firms. This could trigger a death spiral in the firm. III. WHY ARE LAW FIRMS PORTRAYED SO NEGATIVELY IN THE MOVIES? Today, large law firms have become highly efficient, profit-maximizing businesses, little different from other service-delivering businesses and the large corporations that serve as their bread-and-butter clientele. This part explores the reasons that large firms are portrayed with such intense venom in the movies. Do law firms deserve the caricatured and hideously negative treatment they consistently receive in recent films such as The Firm, The Verdict, The Rainmaker or The Devil's Advocate? Clearly not. Say what you will about big firms, they are unlikely to be composed of human beings with repulsive personalities, thieves, killers, evidence spoliators, international criminals, devils, perjurers, or buffoons. Quite the contrary, most big-firm lawyers are decent human beings and big firms deliver services that their clients value highly.123 I suggest that the harshly negative treatment of law firms in recent film results from the convergence of three separate factors: 1 - the sharply increased negativity of the portraits of all lawyers (including solos as well as big and small firms) in films of the last thirty years;A. The Increased Negativity of Lawyer Portraits in Film In my article Bad Lawyers in the Movies,124 I surveyed almost 300 feature films in which American lawyers played significant roles. That survey showed that from 1930 to the end of the 1960s, the great majority of lawyers in film were good human beings and good lawyers125 Indeed, many of the most prominent film lawyers and judges were bathed in a sort of hazy golden light. They were wonderful human beings, faithful friends, family men, and highly competent, ethical, and zealous attorneys. Most lawyers, in film or real life, were never as noble or skilled as Atticus Finch, Paul Biegler, Abraham Lincoln, or Henry Drummond (actually Clarence Darrow), but such characters provided inspiring role models. Somewhere around the 1970s, film portrayals of lawyers turned sharply negative. During the last thirty years, most of the lawyers in film have been either bad human beings or bad lawyers or both.126 The reasons why this happened are not difficult to discover. During the exact same time, the public's image of lawyers collapsed.127 Lawyers had never been particularly popular, but they used to be respected and trusted. During the last thirty years, however, lawyers plunged to the lowest levels of public confidence of almost any profession or occupation, and they have remained there to this day. Popular culture is usually a mirror of the society that consumes it;128 a society that hates lawyers will produce and consume films containing hateful lawyers.129 In this respect, negative movies about law firms are simply part of the broader trend of negative movies about lawyers. Still, this analysis fails to explain why law firms in both the good lawyer and bad lawyer eras have been consistently portrayed more negatively than solo lawyers or why big firms in the movies are worse than small firms. B. The Public's Low Opinion of Big Law Firms As already discussed,130 in the last quarter of the twentieth century, law firms evolved gradually from moderately sized aggregations of lawyers taking advantage of specialization, leverage, and economies of scale into something quite different: immensely profitable, country-and world-wide megafirms. Large firms tend to specialize in the sort of hardball litigation tactics that have come to characterize law today.131 Often, the victims of such tactics are plaintiffs in tort litigation being represented by small firms or solo practitioners. Moreover, some large firms have been caught in well-publicized unethical behavior that has proved both costly and embarrassing.132 As refracted by the news media into sensationalized news nuggets, this kind of negative information has apparently seeped into the consciousness of the general public. Today, many people have become aware of how much money big firm partners make; this information used to be a carefully guarded secret.133 John Grisham's best-selling novels, which almost always caricature law firms, have driven the point home134 and the many negative law firm movies have only reinforced such beliefs. It is no accident that the Harris Poll reports that law firm leadership has the lowest public approval rating of any institution in the country, well below government, the military, big business, and labor union leadership.135 In its introduction to polling data released in 1997, the Harris Poll wrote: Recent Harris Polls have found that public attitudes to lawyers and law firms, which were already low, continue to get worse. Lawyers have seen a dramatic decline in their "prestige" which has fallen faster than that of any other occupation, over the last twenty years. Fewer people have confidence in law firms than in any of the major institutions measured by Harris including the Congress, organized labor, or the federal government. It is not a pretty picture ...By 1999, the confidence of people in institutions had risen across the board. The number of people having confidence in law firms rose from 7 percent to 10 percent, but that was still by far the lowest percentage of any institution. Law firms remained well below such commonly despised institutions as Congress, organized labor, and the press.137 It is no wonder that such a despised institution is vilified in the movies. C. Reflecting the Negative Treatment of Business This Article is not the place for an extended survey of the way that business is portrayed in the movies. I am prepared to assert, however, that big business in film is almost always portrayed in a negative or highly negative manner.138 Money plus power usually equates to evil in the movies, and big business has plenty of each. In the recent film The Insider,139 for example, both tobacco companies and network television are portrayed as greedy and evil, but there is nothing unique about that. Countless films have portrayed big business and its leadership in a negative fashion. Anti-big business movies were a staple in the 1930s, especially in the years before the movie industry's Production Code140 came into effect.141 A generation ago, a series of terrific films effectively critiqued the management and practices of big business.142 Closer to our own time, a series of memorable films have attacked big business in particular industries such as stock brokerage,143 the nuclear industry, 144 media and entertainment,145 or textiles.146 Sometimes, small businesses and small business people receive favorable treatment,147 especially when they are being mauled by a larger competitor, but big business is seldom presented favorably. Big shots in big business are usually greedy creeps. It is ironic that films produced and distributed by very big and aggressive studios generally portray the rest of big business in such an ugly light.148 The anti-big business bias in the movies affects law firm portrayals in two ways. First, big law firms are themselves large profit-oriented business organizations. Like any other big business entity, big law firms are portrayed in film as greedy and dishonest; we would expect to see them cheating or squashing ordinary human beings or small businesses. Second, big law firms exist primarily to represent big business. If big business is evil, its champions must be equally so. The filmmaker who wants to vilify big business needs a human face to serve as the focus for the audience's hatred. It is difficult to show the corporate structure from the inside,149 and far easier to pick on the lawyer who is fronting for the corporation150 Thus law firms are taking the brunt of the consistently anti-business orientation of filmmakers. In many of the films involving big law firms, the big business client is drawn in deeply negative tones. In Erin Brockovich,151 for example, the defendant, a utility that poisoned the groundwater, destroys documents establishing that its top management knew about the dumping. In A Civil Action,152 the same thing happens; worse, the corporation gets away with it. In The Rainmaker, the client is a medical insurance company that never pays claims and lies, cheats, and steals to cover it up. The insiders loot the company to avoid paying damages to righteous plaintiffs. In Class Action, the auto manufacturer balanced loss of life from exploding gas tanks against saving a few bucks in the design of the car. The various wealthy business clients portrayed in The Devil's Advocate were vicious killers, and the list goes on. laying waste to all before them. In this world, law firm ethics are purely situational; the lawyers do what they have to do to win and reap huge fees but not get caught. How much of this is true? Is art imitating life here? Or is this all a bunch of baloney? A. The Reality of Life Inside Big Firms 1. Written Accounts of Associate Life Several recent films paint a grim picture of the lifestyles of big firm lawyers - both associates and partners. In The Firm and The Devil's Advocate we see associates laboring far into the night, leaving their spouses to eat dinner alone and fall asleep before they come home.153 In Hook,154 a big-firm partner utterly neglects his family.155 There is ample evidence that many big firm associates feel that they work inhuman hours, often performing chores of indescribable tedium. They stick it out because they need the big bucks to pay down their student loans; by the time the loans are paid off, they are addicted to very high compensation.156 In Double Billing,157 Cameron Stracher wrote about his three miserable years of overwhelming workload at a large New York firm. He described boring work (such as document searches in a vast warehouse), an absence of training and mentoring, unpleasant interactions with clients, partners and associates, and a total lack of control over his practice or his life. The pseudonymous William Keates also described, in diary form, eighteen months of crushing workload and numbingly tedious work he endured at a big New York law firm before making his escape.158 Numerous studies and writers,159 most notably Patrick Schiltz,160 have forcefully addressed the issues relating to quality of life of young lawyers in big law firms. They chronicle the high rates of depression, alcoholism, divorce, and poor physical health among big firm lawyers.161 These authors focus on numerous statistical studies indicating that big firm lawyers earn the most money, work the most hours, and they are the least satisfied with their work.162 It should be noted, however, that one careful study of Chicago lawyers contradicts these findings and indicates that big firm lawyers are broadly satisfied with their lives.163 Another piece of data that suggests that associates are broadly dissatisfied with their work lives is that their attrition rates are staggering.164 It appears that the biggest culprits are the killingly long hours of work combined with arbitrary work demands, a lack of autonomy, and poor inter-personal communications between associates and partners. Many associates feel they are working in nicely decorated sweatshops. Billable hours have become the raison d'être of law firm existence. High numbers of billable hours are essential to maximize the benefits of leverage for equity partners as well as to pay for the sharply increased levels of associates' compensation. Consequently, associates must bill very high hours to receive bonuses and to be considered for advancement to partnership. Even partners (at least non-rainmaking partners) must maintain high rates of billable hours or risk being pruned. In order to bill 2000 hours a year, most lawyers need to be physically present at the office for close to 3000 hours.165 Given a thirty-minute commute each way, a 3000-hour work year requires the lawyer to be out of the house and away from family or friends around eleven hours per day, six days a week, fifty weeks a year. That means leaving home at 8:00, returning at 7:00, Monday to Saturday. Want to work half day on Saturday? Then return home at 8:30 or 9:00 during the week or work Sundays. In any event, there will be many late-nighters or Sundays at work; time demands are erratic and unpredictable and can change on an hourly basis. If the firm requires associates (or the associates drive themselves) to bill 2400 hours per year, which is not unusual,166 add on at least another two hours per day, six days a week. The destructive consequences on personal health and on family or relationships from working anything like these kinds of hours are painfully obvious. They are particularly unbearable for lawyers with child-care responsibilities.167 Many lawyers report that they see only their offices, their cars, and their beds. There is little time for a personal life, let alone a lifestyle. Not every law firm associate feels exploited by the long hours. Many young lawyers in big firms believe that long hours at work are an acceptable tradeoff for the stunningly high compensation they receive, especially given the crushing levels of debt that burden most law school graduates. Many believe that young lawyers in smaller firms or young people in other professions (such as medicine) work just as hard but get paid much less.168 Traditionally, big firms offered additional payoffs beyond generous compensation and lavish fringe benefits. For example, at large law firms, associates can do interesting and challenging work of a sort that small firm lawyers may never encounter. Big firms are supposed to offer excellent training and mentoring. Given that law school furnishes little or no practical training, a young lawyer can accumulate human capital only by gaining practical experience with clients and being trained by more senior lawyers in the ways of law practice.169 There is the sense that big firm lawyers will work as part of a team; good friends and colleagues will toil together. Those associates who want to depart or who are not made partners could count on the firm to provide them with excellent lateral mobility. They could move to partnership at a smaller firm or an in-house position with the firm's clients. However, these traditional benefits of big firm practice appear to be withering away in the contemporary environment. Every possible minute of every working day must translate directly into billable hours and money, so partners at many firms do not have time to provide training and mentoring to all or most of their young associates, even assuming they have the inclination and the skills to do so. Because clients will not pay for time spent on training, mentoring, or tag-alongs, such time becomes nonbillable. Firms may only provide training and mentoring to associates perceived as running on the partnership track.170 Colleagueship seems elusive in the stressful, intensely competitive, totally exhausting environment of the big firms.171 Some firms provide excellent training and maintain a more traditional, friendly, and supportive atmosphere for their associates. Others, concerned with high attrition rates, have tried to improve associate life style with casual dress codes or tolerating work from home. Nevertheless, the accounts available to us indicate that the work life of many associates in big city megafirms is quite miserable. Another traditional element of associate life in big firms was the tournament of partnership.172 As described by Galanter and Palay, the rules of this tournament are assumed to be fair and transparent. The winners of the tournament could anticipate a lavishly rewarded and highly secure law firm partnership. The losers would at least understand that they had lost out in a fair competition. Tournament theory, however, is in need of significant modification.173 Wilkins and Gulati explain that law firms engage in a system of tracking the most promising associates based on the quality of work during their early associate years. They also give preference to associates that graduated from the better law schools or who have the best connections. Those fortunate enough to be placed on the partnership track receive most of the interesting work. The boring but necessary work is allocated to those identified as probable losers in the partnership competition.174 Because of such favoritism, associates perceive that the rules of the tournament are opaque. They soon realize that success depends less on hard work and dedication and more on nurturing relationships with senior lawyers.175 2. The Greedy Associates Survey To open a window into the lives of young associates in big firms, I posted a series of questions on Internet bulletin boards directed at "Greedy Associates" in big firms.176 One of the questions I asked concerned the associates' attitudes toward their work and their quality of life. I asked associates who were willing to provide input to do so on the board itself, or by e-mailing me or by asking me to phone them. I received ninety-seven responses that included at least some information.177 Obviously, this exercise does not provide anything remotely resembling a random sample of law firm associates.178 The Greedy Associates are not a random sample of all young associates, and those who took the trouble to respond to my queries may not be a random sample of all greedy associates. This exercise did, however, allow a substantial number of associates to speak to me in their own words about the quality of their work and life. Their narratives are interesting and revealing. Given that the respondents are "Greedy Associates" (if they were not, they would not be spending precious time reading the postings on these bulletin boards), and that people who are angry are more likely to respond to these kinds of questions, I was surprised that roughly half of those responding were not displeased with their quality of life. These respondents thought their work, on the whole, was interesting, and the high billable hour requirements a fair tradeoff for their handsome compensation. They remarked that most jobs are hard and boring, but few pay nearly as well as associate jobs in law firms. Some went out of their way to denounce dissatisfied associates as immature whiners. Several respondents observed that lawyers at small firms work nearly as hard as big firm lawyers, doing less interesting work, for much less money.179 A typical response from an associate in Texas: Do I work too much? Yes. Do I work too much for what I am paid? No. Did I choose to take this job and work too much so that my wife could stay home with the kids? Absolutely. Overall, I am satisfied with the balance of work versus lifestyle. Is my work boring? Sometimes, but is sitting in a cube all day crunching numbers even more boring? Absolutely.About half of the respondents indicated they were quite unhappy in their professional lives. For example, one senior associate wrote: I and others at my firm have been told that if you do not "naturally" have a year in which you bill at least 2400 hours ... the firm will create a workload that will require you to bill at least that many hours in a year, merely so that you can prove that you can ... Supervising attorneys rarely have compassion for the personal troubles of associates who work for them, even if these "personal troubles" include physical health problems... . Combined, all of these factors have an unmistakable impact on attorneys' physical and emotional health. Many attorneys are sick for months and cannot seem to recover... . It will not come as a surprise to you that I deeply regret my choice of profession, and that I've been unhappy with my firm for years. Why have I stayed? Debt ... .Another wrote: Dissatisfied with life? Outside of professional aspirations, this is an absolute truth for myself and 99 percent of the other associates I know. I work every weekday 9-11 and generally 10+ hours over the weekend. I am on call 100 percent of my life. Any aspirations for a personal life are simply a pipe dream. I am either at work, or at home after midnight watching TV from bed. The money is not nice, it is essential. I owe close to 150k.More tersely: I can assure you that the life of big firm associates is a terribly dysfunctional one and there is no possible way to be happy - someone should sue the partners for intentional infliction of emotional distress! And if you think it is terrible for the associates, then double that misery for the wives (or husbands) who have their lives uprooted.In some, but not all postings, I asked the Greedy Associates if they felt that the rules for the partnership competition were fair and transparent. Most of those who answered the question said it was anything but. One associate described the competition as "an absolute crap shoot ... . Once you are in with a partner, if they are in with the partnership, you can do no wrong ... ."180 In short, the various accounts available to us of life at the associate level are consistent. These accounts come in the form of memoirs, survey data, and anecdotal evidence. They describe a miserable professional life for many young people in big law firms. The depictions of that life in movies such as The Firm, The Devil's Advocate, Class Action, or From the Hip181 are not so very far wrong. B. The Ethics of Big Firms The life of lawyers in big firms is grueling and unglamorous, but what of the moral claims made by the movies? Do lawyers working for big firms lie, cheat, and steal? 1. Ethical Problems of Small Firms Small firms are more prone to certain kinds of ethical violations than are large ones. The kinds of misbehavior that cause lawyers to be disbarred mostly involve thefts from client trust funds, neglecting or ignoring clients, severe forms of malpractice, or gross forms of ambulance chasing. In many cases, these lapses are traceable to drug or alcohol addiction.182 At big firms, however, colleagues are likely to realize that a lawyer has a substance abuse problem and take steps to remedy the problem and protect clients.183 In contrast, a solo practice or very small firm may lack such internal checking mechanisms. Small firms are also more likely to run into cash flow problems that might cause lawyers to raid the trust funds.184 Big firms have a great deal at stake in maintaining their hard-won reputations for quality work and ethical behavior.185 They are less likely than small firms to engage in blatant ambulance chasing or gross forms of malpractice that could cause an attorney to be disbarred.186 Big firms maintain elaborate computer checking systems to protect themselves against becoming accidentally enmeshed in conflicts of interest, to detect billing irregularities, or to prevent lawyers from missing deadlines. Many have ethics committees to which lawyers can confidentially refer thorny ethics problems. Big firms have the luxury of being choosy about accepting new business; they can afford to decline marginal matters or sleazy clients. Given the surplus of lawyers, however, many small firms or solos are desperate for business; they are more likely to take marginal cases or dubious clients and may feel they have to cheat to survive financially. 2. Ethical Problems of Big Firms Using the movies as our text, we would assume that big firms cheat big time.187 In The Verdict we find a big firm engaging in numerous forms of creative cheating such as bribing the opponent's expert witness to disappear or planting a sexual spy in the opposition's camp. In Class Action, a big defense firm first conceals, then destroys, a critical document. In The Rainmaker, the firm plants a bug in its opponent's office and colludes with the client in causing witnesses to disappear; perhaps it also knows that the client has testified falsely and fraudulently altered evidence. In Regarding Henry the firm suppressed critical evidence and engaged in discovery fraud.188 In Philadelphia, the firm engaged in various forms of illegal chicanery to get rid of an associate with AIDS and to cover it up afterwards, including perjury. All of these are clear-cut ethical violations that would surely trigger severe professional discipline if detected; some of them are criminal violations. How much does this sort of thing actually happen in the big firm environment? The answer is elusive. Lawyers who commit major ethical violations keep quiet about it and pray that nobody will ever find out. In my informal Greedy Associate survey, the vast majority of the respondents said that they had never seen anything of the sort and some were offended that I even asked the question. Some remarked that solo lawyers or small firms, desperate to keep business or to keep a contingent fee case going, are more likely to engage in such cheating. Others remarked that clients frequently try to conceal bad documents but that lawyers insist on disclosing them if the client's fraud is detected. For example, an associate who is thoroughly miserable about his own big firm lifestyle responded to my question about gross ethical violations: No way, no-how. We chastise clients who ask us to hide bad facts in my practice. Our litigators that I know are good and aggressive but would never cheat or bend rules to suit them. We are way too busy to work with clients who want us to cheat on their behalf and the exposure is far too great. That shit is for desperate lawyers.A few Greedy Associates did observe gross ethical violations, either in their own firms or in other firms. Some comments: Yes, I lie to the judges, we all do ... .Serious ethical lapses do occur, and both big and small firms occasionally get caught engaging in them.189 No doubt, for every one of these publicized incidents, countless others have gone undetected or were quietly dealt with by the parties involved. Still, random publicized incidents involving big firms do not prove or even suggest that big firms are prone to bad ethics nor that they are more morally culpable than small firms or solos. Of course, there is no way for an outside to know the answer. I am inclined to accept the repeated responses to the Greedy Associate survey that big firms have little need to commit clear-cut ethical violations and far too much to lose from taking such chances. Thus, the repeated depiction in big-firm movies appears to convey an erroneous impression that such violations are widespread. 3. The Harsh Realities of Big-Firm Litigation Practice Numerous films involving law firms have depicted all-out hardball litigation. In these films, big firms seek to exhaust their opponents with overwhelming discovery demands, resist justified discovery demands, file motions with little merit, and engage in other delaying tactics.190 Lawyers act uncivilly toward one another and treat deponents harshly. In this respect, the movies accurately portray the realities of contemporary big firm litigation practice - and a great deal of small firm litigation practice as well.191 Hardball litigation tactics may or may not lie just on the ethical side of the lines laid out in the Model Rules.192 They do not, however, contribute to the search for truth or justice in the litigation process. While the great majority of the respondents to my Greedy Associates survey stated that gross ethical improprieties were unthinkable in their firms, they were far more ambivalent about other firm conduct. Numerous responses spoke of behavior that most nonlawyers would think was unethical and immoral. This consists of action designed to conceal the truth or to trick or exhaust the opposing side, but by means that seem to fall just short of ethical violations or which violate unenforced ethical standards.193 One very prevalent hardball tactic is incivility - that is, rude, bullying behavior that is designed to intimidate other lawyers or witnesses. For the most part, the respondents distinguished hardball litigation tactics from serious ethical improprieties. They do not like to behave this way, but regard such tactics as all in a day's work. One cannot survive in the big firm environment without engaging in them. I think the small ethical breaches which are most common contribute most to making the practice of law slimy. I have been asked to play dumb by partners ("if the other side calls asking where the new draft is, tell them our system crashed or the para made all the wrong changes last night"). Less obvious ethical breaches occur - e.g. suggestions that associates lie about who they are ("I'm a college student doing research for a report") or who they represent. Big firms ... may flood smaller firms with paper knowing that the first-year grunts and temps they put on the deal will probably miss something ... The most common ethical violations I see are: (1) the contortions some firms/partners go through to determine that there is no conflict of interest in taking a case; (2) lawyers who don't consult their clients; (3) fast and loose arguments; and (4) discovery games. When the imbalance between superior game playing and a fair result is stark, then the system is certainly slimy, and if not slimy themselves, the lawyers who participated at least become slimed in the public's eye. There are all sorts of sharp litigation practices out there: - producing documents during a deposition, or late the night before, that were requested and/or subpoenaed many months ago ... - misrepresenting the substance of telephone conversations with opposing counsel - coaching of witnesses before and during depositions - excessive and sometimes frivolous motion practice, or unduly burdensome discovery - obstructionist tactics in "answering" interrogatories, requests to admit, and other legitimate discovery requests; - egregious mischaracterizations of the facts and law in briefs or in oral arguments before the Court. ... [D]elaying production of documents until after a motion to compel has been opposed and lost and, sometimes, appealed and lost, all for the purposes of delay and driving up the other side's costs, is immoral. But that is the game. Make things as difficult as possible for the other side within the bounds of the law. Do some documents get put on a privileged list that may not be privileged? Sure, but the other side has an opportunity to challenge that. There's a lot of unconscious violations - just making blanket exceptions in discovery when you know you will have to disclose, just making trouble for the other side. Lawyers spend time arguing bullshit stuff but they may or may not think it's bad faith. But I can tell you that we have occasionally buried a document in with others in the hope that it, or its significance, is overlooked. I think people are obnoxious, and it's true that they spend unbelievable amounts of time writing letters accusing the other side of withholding documents and so forth, but I haven't seen anyone violate the Rules. I do know that lawyers frequently "shade" the facts or law to courts and administrative bodies, so much so that I would consider it deceitful, but again, they are not doing it because they intend to lie; instead they are overzealous in their advocacy. I think sometimes answers to interrogatories and responses to document production requests place too much emphasis on semantics. An artificially narrow reading of requests allows an attorney to avoid stating or producing something in response to a question ... that is perfectly understandable in the context of litigation. I sometimes wonder how stupid an attorney can play without going over the ethical line. Playing dumb is pretty common practice.In their depiction of slippery or hardball litigation practices by big firms, the filmmakers are right on the money. 4. Billing Improprieties Several movies describe law firm behavior that appears to be aimed at inflating the client's bill. In The Verdict, for example, Ed Concannon clearly overstaffs the case. More than a dozen associates sit around a table listening to Concannon prepare a witness. In The Firm, a mentor partner tells Mitch McDeere to bill everything, even when he is thinking about client matters in the shower. Numerous accounts of real-life law firm billing improprieties have appeared.194 According to Deborah Rhode: Audits of "legal expenses" have revealed massages during litigation, dry cleaning for a toupee, running shoes labeled "ground transportation," Victoria's Secret lingerie, and men's suits for an out-of-state trial that took longer than expected. Days in which lawyers bill more than twenty-four hours are no longer rare ... . When heiress Doris Duke died, leaving over a billion dollars to charity, two dozen law firms embarked on what one attorney candidly described as "a feeding frenzy." Some of the nation's leading practitioners, staying at leading hotels, charging at premium rates, managed to duplicate each other's work and keep each other employed, which diverted an estimated $ 20 million from charitable causes.195About half of the Greedy Associates said that their firms never overbilled clients; indeed, they thought that underbilling was more likely than overbilling. But the other half of the respondents reported that bill padding occurs at their firms. According to these respondents, both associates and partners inflate the number of their billable hours. Billable hours are often used to compute bonuses and lawyers must bill minimum number of hours to advance in the firm. As a result, lawyers inflate their hours on time sheets, either because they cannot physically work that many hours, or because there is not enough work to do. Indeed, it is difficult to understand how associates can consistently bill 2400 hours a year or more without cheating on their time sheets if they want any sort of life outside the office. A number of respondents observed that basing everything on billable hours is perverse. It punishes lawyers who are more efficient and it keeps them working past the point of exhaustion. Others pointed to the assignment of unnecessary or even useless work to "churn" the number of hours billed to a particular matter. A sampling of some of the comments: ... overbilling is very troubling. It occurs in many forms. One of the most common forms is the billing of attorney time for work that clearly should be performed by a staff person, whether by a paralegal, at a lower billing rate, or by a secretary or word processor, at no cost to the client ... . Unnecessary work often is performed and billed to the client, sometimes even when the client expressly has said that it does not want the work performed ... multiple people, even multiple partners, read and revise the same drafts of documents, even when a client directs that this should not occur. Duplication of work also is a problem. This can occur from client to client, as in when the same research assignment is performed for two or more clients from scratch, rather than using the first project as a basis for updating and billing the subsequent clients only for the work necessary to update. It also can occur in the context of only one client, where a partner simultaneously assigns multiple associates to research the same thing, or assigns one associate to "double check" the entire work product of another associate. The quality of time billed also can be a problem. If an associate works more than 250, more than 300, more than 400 hours in a month, going without sleep for days at a time, what kind of efficiency and accuracy level is the client being billed for by the end of the month? Unnecessary work is rampant (where I work). It's a combination of the desire to bill and the incompetence of higher-ups. I have spent many hours doing things that are totally pointless. This is often referred to as "churning the file." On the issues of overwork and lawyer lifestyle and the single-minded pursuit of profit in big firms, the movies are on the money. They accurately describe the profession's move from the professionalism to the business model as well as the stunning increase in the size of big firms and their profitability. As to conduct by big firm attorneys that offends the ordinary person's moral sensibilities, the movies again are largely accurate. Rude and uncivil behavior is now taken for granted. Big firm lawyers now believe that their jobs require them to engage in dirty but marginally ethical tactics that conceal the truth, cause delay, and generate cost for the sake of wearing out the opposition. Overbilling of various sorts appears to be rampant. I believe that on these issues, filmmakers have spoken the truth.197 As to other kinds of clear-cut ethical violations (such as destroying critical documents or outright lying to courts), it is hard to say. Lawyers in big law firms with whom I have discussed these matters pooh-pooh the problem. The same is true of the great majority of the Greedy Associates who responded to my bulletin board posting. They claim that a strict culture of ethical behavior in their organizations precludes such behavior and that big firms have too much to lose to engage in serious cheating. Yet such things have happened and a minority of the Greedy Associates confirm that they have seen it. Those who have committed such offenses keep quiet about it. There is no way for an outsider to know how often it occurs. If he were here with us today, and watching the movies about law firms made during the last twenty years or so, Orson Welles would be chuckling with approval.198 |
