BOALT: LEGAL PROFESSION (FALL 2012)WEEK FOUR – COMPETENCE & DILIGENCE

SEPTEMBER 18, 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-J Are Ready to Discuss

4.3 Quick Self-Assessment

All Read; K-L ready to discuss

4.4 John Monroe All Read: M-R ready to discuss

4.5 From 3L to 401(k): Seasons of an Attorney’s Life

All Read: S-Z ready to discuss

4. COMPETENCE AND DILIGENCE

Rules: MR 1.1 & 1.3 Read those Rules and Comments!

4.1. Questions

(Q 4.1) What is the duty of competence?(Q 4.2) Is a brand new lawyer competent at anything at all? (Q 4.3) How can a lawyer gain competence?(Q 4.4) 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 is the relationship between “zeal” and competence/diligence?

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 bird-watch, 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 sheet: for the defendant's stop, the reading of his rights and his refusal of the

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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 29th-floor 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."

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.

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"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.

"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

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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.

"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

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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."

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."

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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."

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.

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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.

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.

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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.

"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?

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"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 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.

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(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.

Chart 1. Practice Styles

Expertise Relationships

External

(new business from new clients)

Hired Gun

(External Reputation)

Rainmaker

(firm ambassador)

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Internal

(new business from existing clients)

Brain Surgeon

(Technical Specialist)

Point Person

(client manager)

Chart 2. Tactics By Business Development Type

Hired Gun

MarketingConferences

PitchesWriting Articles

Rainmaker

NetworkingBoards

EntertainingCommunity causes

Brain Surgeon

Research & DevelopmentInternal reputation

Internal CLE

Point Person

Client serviceEvents with clientManaging 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.

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.

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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.

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.

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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 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

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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 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

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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.

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

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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 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

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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.

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,

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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, 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,

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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 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:

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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 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.

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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 agreed-upon 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.

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.

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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.

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

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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

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

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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.

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

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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.

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.

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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.

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.

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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.

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.

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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 top-level 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:

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

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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.

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.

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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.

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.

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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.

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.

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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 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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