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FORDHAM UNIVERSITY SCHOOL OF LAWLOUIS STEIN CENTER FOR LAW AND ETHICS

PROFESSIONAL CHALLENGES IN LARGE-FIRM PRACTICES FRIDAY AFTERNOON, APRIL 15, 2005

Panel III: Can Law Firms Do Good While Doing Well?

ModeratorGail Flesher

Davis Polk & Wardwell

PanelistsLouis A. Craco

NYS Judicial Institute on Professionalism

Lawrence J. Fox Drinker Biddle & Reath LLP

Russell G. Pearce Fordham University School of Law

Deborah Rhode Stanford Law School

MS. FLESHER: Why don’t we go ahead and get

started?

My name is Gail Flesher. I am with Davis Polk &

Wardwell. I am honored to be here. I am moderating this

panel, “Can Law Firms Do Good While Doing Well?”

As we have heard in the morning sessions, law-firm

life is quite complicated. Things are busy. The pace is

Verbatim Transceedings, Inc. 800/783-3770

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fast. The demands are constant. The competition is

significant. With all that, can lawyers really do good

while they are doing well? To me, that partly means, can

they serve the needs of those who can’t afford to pay the

fees of big law firms? There are some other issues that I

think other panelists will speak of as well.

I met Bruce Green – and, I think, was invited to

participate in this – because we were involved, along with

the NALP Foundation and the City Bar, in doing a study on

what lawyers did in connection with the needs that arose

after September 11, which were obviously quite significant,

quite demanding in their own way, quite timely. I was quite

impressed and quite gratified that the results of our study

showed that a lot of lawyers contributed their time and

their effort, and a lot of those lawyers – in fact, the vast

majority of those lawyers – were from the big law firms that

we are talking about.

So I think it is possible to do good while doing

well. But there are lots of issues relating to that. This

panel is going to talk about, primarily, some of those


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issues, and I think maybe some ideas on how to make sure we

do as much as we can in that regard.

In addition to providing great training, excellent

mentoring, regular client contact, great work, what can law

firms do to help their lawyers get the most out of their

careers, serve the public good, to the extent they want to,

to develop?

We have a great set of panelists. I am going to

introduce them as they speak.

Our first panelist is going to be Russ Pearce, who

is one of our co-hosts. He is a Co-Director of Fordham Law

School’s Louis Stein Center for Law and Ethics and one of

the overseers of the Stein Scholars Program. He teaches

professional responsibility, ethics, and public interest

law, and is involved with the Housing Rights Clinic. He is

a graduate of Yale Law School, and prior to joining Fordham,

he, maybe more than anybody that I have heard today, had the

breadth of practice to comment on a lot of these areas. He

has worked in private practice, at the Legal Aid Society,

and was General Counsel to the New York City Commission on


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Human Rights.

PROF. PEARCE: Thank you.

I am sharing this panel with Larry Fox, who, many

of you know, is sort of the leading storyteller of the

American legal profession. In his honor, I have to start

with a story.

I was speaking with a transactional lawyer that I

hadn’t seen in many years. He spoke with passion about his

work. He was making good money. He was working on

important deals. He took pride that when he worked on a

deal, all the parties understood what the deal was about,

and the deals were basically fair. Then he started to

apologize. He started to apologize for not doing good in

his career as a lawyer. In law school, he had done some

public-interest work, and he never followed up on it; then,

as a lawyer, he didn’t do a lot of pro bono.

So why did this lawyer feel the need to apologize?

His work was important, and he did it in an honorable way.

But he subscribed to a basic tenet of professionalism, the

business/profession dichotomy. Business people work


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primarily for self-interest. Professionals – lawyers – work

primarily for the public good. Applied to the legal

profession, that divides us into saints and sinners. If,

like my friend, you chose your path in the law because you

wanted to make a lot of money, you are like a business

person; you are a winner. If you decided to be a public-

interest lawyer, then you are a saint.

It wasn’t always this way. When Louis Brandeis

wrote about the lawyer’s role, he was a business lawyer who

was both a fan and a critic of other business lawyers. In

matters of public concern, he viewed what we would call the

large-firm lawyer today as “the people’s lawyer,” the

equivalent of our public-interest bar. It was corporate

lawyers who were charged with leadership and identifying and

promoting the public good. In representing their clients,

he believed that the work of the business lawyer was noble.

He said it required the skills and moral judgment of a

statesman.

His view was the dominant view of the legal

profession – certainly, of the elite – through the early


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1960s. As recently as the early 1960s, Erwin Smigel, in his

famous book, The Wall Street Lawyer, where he did a large

number of interviews of a representative sample of corporate

lawyers in New York, showed that elite lawyers saw

themselves first as guardians of the law.

This all changed in the 1960s. Following the

1960s, studies of lawyer attitudes document that elite

lawyers had discarded the governing class ideal for an idea

that had previously been a minority view, the idea that is

dominant today, the notion that the lawyer is a hired gun.

Murray Schwartz and David Luban have sort of famously

identified the two key elements of this idea as (1) extreme

partisanship for your client and (2) moral non-

accountability, meaning, as long as you are an extreme

partisan, you have no moral obligations, other than to

pursue your client’s ends.

Why this change? The conventional wisdom – and we

have heard some of this today – is that large law firm

lawyers have gotten greedy since the 1960s. No matter how

often this mantra is repeated, it is not persuasive. Let’s


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face it: From the creation of what we know as the corporate

law firm in the late 19th century, making money has been its

raison d’etre – making money for big-business clients and

for their lawyers.

So what really happened? A combination of things.

Society shifted in the 1960s. Most of the American elite,

including lawyers, embraced the idea that people were

fundamentally interested in themselves and not concerned

with the public good. If this were true, the only way to

practice that made sense for lawyers and clients was to be

an amoral hired gun.

Two changes in the profession facilitated this

shift. It had nothing to do with billing hours. The first

was the creation of public-interest law as an area of

practice in the 1960s. What this did was to segment

responsibility for the public good in a small area of

practice and remove it from the profession as a whole,

especially the corporate leadership.

The second was the new ethical duty of pro bono.

Obligation to help the poor had always been part of the idea


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of the governing class, but the notion of a separate ethical

duty, broadly understood, dates only to the 1960s. Pro bono

completed what public-interest law began. Within the

practice of the lawyer, it segregated obligation to the

public good in the marginal part of the lawyer’s work, which

was not what she did day-to-day.

Today, business lawyers like my friend are

operating with two contradictory ideologies: the notion

that they should be a hired gun, a hired gun who is bound to

be amoral; and professionalism, which condemns business

lawyers for failing to pursue the public good.

How have lawyers responded? Large numbers of

lawyers agree; they are self-interested; we are all about

money. Large numbers also feel very bad about themselves.

It is no surprise that the rates of substance abuse and

anxiety-related mental illness are far higher for lawyers

than for other occupations, or that job satisfaction is far

lower.

How did the organized bar respond? In 1984, Chief

Justice Burger declared that law had become a business and


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professionalism was in crisis. In response, the bar

declared war, a war of professionalism rhetoric,

professionalism commissions, professionalism codes,

mandatory ethics and professionalism Continuing Legal

Education courses, and pro bono, pro bono, pro bono.

What is the result of the bar’s twenty-year

professionalism campaign? Not much. Why? If most lawyers

think they are in law to make money, you just can’t convince

them that they are really working for the public good. If

you make the argument, they are going to think you are

either a hypocrite, a cynic, or a fool.

As for pro bono, pro bono is a good thing; but,

unless you place it in the context of broad moral

obligation, it serves, as I mentioned before, to relegate

the public good into the margins of legal practice.

What might make a difference? Instead of trying

to separate making money and doing well, we should try to

integrate the two. How would you go about that?

One, adopt a realistic conception of commitment to

the common good. Most of us are neither saints nor sinners.


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I disagree strongly with what Michael Greco said earlier.

We are not morally superior by virtue of being lawyers. We

are just like everyone else. We want to make money and we

want to do good. That means, just like everyone else, we

are morally accountable for what we do.

Applying that to practice does not require

automatically taking sides between, say, Larry Fox’s strong

version of advocacy and Deborah Rhode’s more circumscribed

conception. But what it does mean is that all of us,

whatever our views, have to justify our approach morally,

and not just assume it, as the bar too often does today.

Second, moral responsibility does add one specific

obligation: We must counsel our clients on the moral

implications of their actions. In doing so, we could teach

clients moral accountability to the law and to society, in

contrast to today’s lawyers, who too often promote or

reinforce the instrumental attitude of the Enrons and the

AIGs, grounded exclusively in material self-interest. This

proposal does not require a change in the rules. Rule 2.1

already permits it, but because lawyers think they should be


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amoral, most lawyers don’t do it.

We do need a new model rule, an aspirational one,

that lawyers are morally accountable, in order to change

lawyer conduct. Until this new rule is adopted, the large

law firms have a wonderful opportunity to take the lead and

pledge that they will be morally accountable firms.

So will moral accountability resolve all the

problems of the legal profession? Absolutely not. It is

only a first step. But if we discard the

business/profession dichotomy and embrace moral

accountability, it will make a big difference for the

transactional lawyer whom I mentioned at the beginning of my

talk. We will then recognize that business lawyers like him

are the exemplars of doing good while doing well. Even more

important, maybe he will recognize it, too.

MS. FLESHER: Thanks, Russ. That was great. I

have a lot of questions, but I think what we would like to

do on this panel is just let each of the speakers speak and

then we can have questions from everybody about all these

great topics.


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Our next speaker is going to be Larry Fox, who I

had never met before, but, of course, I recognized him when

I got here, because I have seen him on TV commenting on

legal issues of our time. He is currently a partner at

Drinker Biddle & Reath in Philadelphia, specializing in

securities and general commercial litigation and the

counseling of law firms. He is a graduate of Penn School of

Law and past Chair of the ABA Section of Litigation, a

regular participant and leader in many other bar and

academic experiences.

MR. FOX: Good afternoon.

I am reminded that I once went to my first Section

of Litigation meeting back in Chicago, lo those many years

ago, where we were addressed by a psychologist, who was

going to give lawyers tips on dealing with the jury. She

told us, among other things, if you are selecting a juror,

don’t worry about the answers to the questions; look at that

person and see what kind of watch they are wearing or what

kind of clothing they are wearing. You can learn so much

from people that way. Then she gave us the most valuable


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piece of advice I ever got as a trial lawyer, which is put

the weakest part of your case on right after lunch, because

right after lunch, which is when Russ and I get to speak, as

the jurors sit down in the jury box, within ten minutes,

each of them will have had at least one sexual fantasy. I

want to wake you out of your sexual fantasy.

I want to thank Fordham Law School. This has been

the site of some of the most splendid conferences, year

after year, and it is owed to the leadership of Russ and

Bruce and others. I think it is splendid that we are here.

I am going to talk about the playing field. This

is the playing field. This is the Am Law 100. The Am Law

100 is an issue of The American Lawyer, and like many

conglomerates, the Am Law 100 has other versions. This is

“The Am Law 100: The Poster.” That is what it says right

there. I can pull out of my briefcase “Am Law 100: The

Magazine.” We have not yet had “The Am Law 100: The

Movie,” but soon it will be here.

This is the issue with which we deal. We have

been talking about it. It has been referred to. We heard


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somebody mention profits and somebody mention revenues. But

it is really good to look at what the Am Law 100 shows. It

is a listing of the 100 largest law firms in America by

revenues. Then we look and we see that the revenues per

lawyer are broken out. This is the amount of money

generated by each and every lawyer within that law firm, on

an average.

We have law firms that have broken through the $1

million barrier. Think about it. What hourly rate times

what number of hours do you need to average – average,

ladies and gentlemen — $1 million? Yet three law firms in

America do that. In the Am Law 100, they all average

$650,000 per lawyer. Think about how it gets achieved.

Then the next thing we learn from “The Poster” is

profits per partner. There are thirty-two firms – count

them, thirty-two firms – in the Am Law 100 where the average

profits per partner are over $1 million. These are law

firms with 150, 200, 250 lawyers. I don’t know where it is

written in the Talmud that there could be any economic

enterprise that was able to compensate that many people by


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that sum of money.

It is staggering. It is wonderful. I think it is

something to be celebrated. But it is to be celebrated

only, in my view, if what all that money is generating is

some real commitment to public service. You would think,

with these staggering numbers – staggering numbers – that we

would see incredible commitment to pro bono services.

The good news is, since we count every hour of

every lawyer, every day for every year, we have statistics

on that, too. They come to us from The American Lawyer.

When you look at the statistics on what has happened on the

pro bono side, you see a very dismal picture. Only forty-

five of the Am Law 200 had lawyers average fifty hours of

pro bono a year, less than a quarter of them. Only twenty-

seven of these law firms – twenty-seven out of 200 – had

more than half their lawyers commit twenty hours.

Now, let me be clear. I am from a law firm that

is in the Am Law 100. We are very close to the bottom, but

we are there. Let me also say that I am in a law firm that

is sort of average when it comes to pro bono. I did a rough


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thing while we were sitting this morning. I took out the Am

Law 200 pro bono numbers and took down the names of all the

law firms that are represented here. We have a law firm

here represented that has 82.7 hours per lawyer, and many

others pretty high up. We also have a law firm here whose

average hours for pro bono for lawyers is 17.6. We have one

law firm represented here whose hours are 2.4. These are

the most profitable, successful lawyers in America, and they

are not committing to pro bono.

Look at their literature. Every single Web site

of every one of these law firms will tout their pro bono.

Every single one of them, when the law students sit there

and say, “Tell me about your law firm,” the third thing they

will say – after they say it is collegial and excellent –

is, “We do a lot of pro bono.”

I have told my students, “When you go to your

interviews, please ask them what their commitment is to pro

bono. After they say, ‘We have a commitment to pro bono,’

ask them what it is ― ‘What are your statistics? Are you

really doing it?’”


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But how could this be? How could we get in a

position where the top 200 law firms, the top 100 law firms,

earning all this money, cannot generate better pro bono?

The truth is that the pressures on these law firms are real.

The pressures to increase billable hours are unbelievable.

Part of it is to pay salaries. Part of it is competition.

Part of it is that money is never enough. You make $1

million this year, you have to make $1.1 million next year,

whether you need $1.1 million or not. But I think the

biggest factor is competition. The law firms measure their

worth by the Am Law 100, and not their pro bono hours.

Then we have them set up billable hour goals, and

we go through wrenching things. Are you going to count pro

bono? If you say you are going to count pro bono, do the

associates really believe it? Moreover, with our billable

hour goals, have we left them any time to do it, even if we

really mean it, even if we really tell you that if you do

250 hours of pro bono on top of your 2,500 hours of billable

time?

I chaired the ABA Death Penalty Project for six


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years. I went around the country trying to get law firms to

take death penalty cases. Death penalty cases require an

enormous number of hours. It cannot be done by having

twenty-five lawyers at a law firm each spend ten hours on

the case. You have to dedicate at least the time of one

partner and one associate, half-time, for the time when the

case is active, and maybe more than that.

That is what I got back: “Well, we’d love to do a

death penalty case, but it won’t fit in with our matrix.

What will we do with this poor associate who will spend 500

hours on a death penalty case?”

Maybe you will give him credit. The problem is

that the associate will never believe that the associate is

getting credit.

So what is the result of this? The true believers

do do pro bono at firms. Some of the firms have outstanding

records. I don’t mean to paint them all with a broad brush,

because some of the firms have proved that you can really do

a lot of pro bono.

The litigators do most of the pro bono; the


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transactional lawyers do almost none. The young lawyers do

most of the pro bono; the senior lawyers do very little.

There are attempts by most law firms to count as pro bono

things that we do not believe are pro bono, like serving on

the symphony board or the museum board. But those who do

pro bono generate resentment from those who are not doing

it.

So what is the answer? I don’t have it, but I

will tell you this. When Ethics 2000, the Commission on

which I served, spent a lot of time talking about rewriting

the Model Rules, one of the ones we focused on was Rule 6.1.

Rule 6.1 is the only rule that is not a rule; it is a

hortatory exhortation to everyone to do fifty hours of pro

bono a year. It was very difficult to get it passed by the

ABA, but it was passed a number of years ago.

We said: “Wait a minute. In our Preamble we say

that lawyers are dedicated to the public service. How can

the one rule in our rules that is not a rule be the pro bono

rule? Let us come up with mandatory pro bono.”

So we sent up a trial balloon. We solicited


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comments on a Rule 6.1 that would require every lawyer to

commit fifty hours of pro bono. The hue and cry that was

raised was deafening. Curiously enough, it came from just

those people who had sponsored the proposal for hortatory

fifty hours of pro bono. They said, “Don’t you dare do

this, because of the opponents of 6.1 as it presently exists

say that this is nose of the camel under the tent, and the

next thing you guys are going to do is come up with

mandatory pro bono. Please don’t do it.” They begged, they

pleaded, and we backed off.

I think if we cannot get better pro bono out of

the very best lawyers in the very best law firms, making

these incredible sums of money, handling the most wonderful

legal problems of the rich, then we have no choice but to

recognize that we have a problem and make pro bono

mandatory. So that is my proposal, that we make pro bono

mandatory.

I want to switch topics entirely, just to raise

another uncontroversial idea.

I think the last two years have brought to the


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legal profession some of the most serious crises we could

possibly face. I can just list them: the Patriot Act, what

has happened with the people at Guantanamo, our country’s

use of rendition, the torture, the destruction of the

privilege that was discussed this morning, Sarbanes-Oxley,

and the fallout from the Schiavo case.

I think our bar associations have done a wonderful

job of responding to these issues, but I submit that the

private bar has not. I think too many of us lawyers – and I

consider myself one of those – have let the bar associations

be our proxy. The bar association is a wonderful advocate,

but it gets marginalized.

What we really need to do is have the leaders of

these great law firms in America, who provide these

outstanding legal services to these wonderful enterprises in

America, stand up and be counted on these issues. We can no

longer let the City Bar write the most extraordinary report

on rendition but not have leaders of law firms individually

let their clients know why these issues are so important.

So another way, I think, that law firms can do


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well by doing good is by stepping up, being more courageous

on some very controversial issues, and letting the world

know where lawyers stand on these important matters.

Thank you.

MS. FLESHER: Thanks, Larry.

Our third speaker is Prof. Deborah Rhode, who is

one of the foremost experts in most, if not all, of the

topics we are covering today. She is the Ernest W.

McFarland Professor of Law and Director of the Center of

Ethics at Stanford Law School. We are particularly honored

to have yet another person from the Left Coast on this

panel. A graduate of Yale College and Yale Law School,

Prof. Rhode clerked for Justice Marshall on the Supreme

Court, has authored many books and articles, and

participated in numerous bar association and other

leadership roles.

PROF. RHODE: I join the chorus in thanking,

especially, Bruce and Russell, not only for this conference,

but for all the good works that the Stein Center has done,

and Clark Cunningham also in making this converge with the


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ABA meeting. Thanks also for being on a panel with so many

whose work in so many fields I have long admired.

I will just drop a slight footnote to Larry’s

comments. I was just feeling a moment of – how to put it? –

wistfulness as he described jurors’ experience. I can’t

ever remember being on a panel on professional ethics,

before or after lunch, when I had the experience he

described, which says something really tragic about my

internal fantasy life. So I am going to aim for improvement

on that score. As a consequence, I was paying close

attention to my predecessors, and found really nothing to

disagree with. I am pushing us, I am afraid, in similar

directions.

“Ethics pays” is a recurring refrain among

commentators on professional and business ethics. This, in

part, should come as no surprise. In a culture that is

preoccupied with profit, appeals to self-interest do seem to

be the most persuasive strategy. But, of course, if virtue

were always its own reward, we would surely see a lot more

of it, and promoting professional values in legal workplaces


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increasingly focused on the bottom line obviously requires

us to push beyond some platitudes.

We need more probing questions along the lines

addressed by this conference: To what extent does ethics

pay? How well? Under what circumstances? Most important,

what can be done to increase the rate of return?

My brief comments and the essay from which they

draw want to explore those in three basic contexts:

• The first involves workplace cultures. How do

we create more organizational structures in which adhering

to principle serves financial interests, much along the

lines of Russ’ comments?

• A second area of inquiry, along Larry’s lines,

involves pro bono service. If, as the research suggests,

lawyers can do well by doing good, how can we communicate

that message more effectively in employment and educational

settings and affect those dismal Am Law ratings he referred

to?

• A final cluster of issues concerns quality of

life, the topics raised this morning. If, as a wide array


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of research indicates, balanced lives do promote balance

lines, how can we get legal employers to adjust their

policies accordingly?

I don’t have much time, so let me just hit on a

few high notes.

First, on the extent to which ethics pays, what

about the conjunction between professional cultures and

professional values? Certainly, over the last quarter-

century, there has been an increasing litany of choruses

about the perceived decline of the profession into a

business. About three-quarters of surveyed lawyers echoed

much of what we heard this morning: the profession has

become more money-conscious, and few regard the changes as

welcome. Greed may not be the root of all evil, but it is

surely responsible for a lot of it, including the bar’s

recent complicity in financial, environmental, and health

and safety disasters.

Yet while most of the mainstream commentary

laments the bar’s capitulation to market values,

interestingly enough, most of the commentary on business


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ethics suggests that those values, at least if properly

assessed, are more part of the solution than the problem.

From their perspective, where individuals and institutions

go wrong is focusing on short-term financial gains, which

come at the expense of longer, less visible costs. So as

they frequently, incessantly, point out, the legal and

reputational consequences of moral myopia often dwarf any

immediate payoffs.

Enron et al. are only the most recent examples.

There are also some quite encouraging findings from studies

on corporate social responsibility. For example, one survey

of about 100 of these studies only found four that had a

negative relationship between social and financial

performance; a majority had a positive relationship; and the

others were neutral, or no relationship.

A similar positive pattern emerges from a lot of

qualitative and quantitative research on specific ethical

behaviors and how they affect financial results of

organizations. For example, companies with stated

commitments to ethical behavior have a higher financial


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performance on the whole than companies lacking that

commitment. Employees who view their organization as

supporting fair and ethical conduct, and their leadership as

supporting ethical issues, observe less unethical behavior

and perform a lot better around a variety of dimensions.

They are more willing to share information and knowledge.

They are less likely to engage in petty dishonesty, such as

fudging on hours or misusing business opportunities.

Virtue begets virtue, in short. Observing moral

behavior by others promotes similar conduct. Of course,

employers then reap the rewards in some tangible ways –

higher morale, recruitment and retention, fewer ethical

problems. It can also attract clients and build

constructive relationships with opposing counsel and

government regulators, to cultivate this kind of ethical

reputation.

But as Harvard Business School Professor Lynn

Sharp Paine suggests, when ethics pays, it is generally also

because leaders in business, government, and the professions

have designed internal and compliance structures to make


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that happen. Clearly, those structures are not always in

place.

I think it is not enough to preach the gospel at

the ideological level, as Russ so movingly has, but also to

structure incentive and disciplinary systems to reinforce

the same behavior. We need it because we often exist in

cases of massive market failure, and also because, when it

comes to law, the public is, after all, ambivalent in its

desires. Ethics turns out to be what clients want in other

people’s lawyers. In their own lawyers, zealous advocacy in

pursuit of short-term interests is often what is preferable.

That is where you get the discontinuity.

Finally, of course, the mantra of “ethics pays” as

a kind of core argument for ethical practice, is that in

some ways it is ultimately self-defeating. To make the case

for values turn solely on instrumental considerations is to

reinforce the very patterns of reasoning that undermine

ethical commitments. We respect moral conduct the most when

it occurs despite, not because of, self-interest. What

defines ethical behavior is a commitment to do right even


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when it carries a cost.

Our challenge, it seems to me, as a profession and

society is not only to find ways of minimizing that cost,

but also to respect and reinforce adherence to fundamental

principles, even when they come at a price. That, of

course, is true of pro bono contributions. Obviously, they

have lots of payoffs for lawyers, legal employers, and the

profession generally. I am just coming out with a book in

June, called Pro Bono in Principle and Practice, and spend a

lot of time talking about those concrete rewards. They

exist not just in terms of the training context, trial

experience, leadership opportunities that we often stress,

but also they are correlated with physical and mental

health. You find this about altruistic activity in general.

Lawyers are no exception. Of course, for many

private practitioners, volunteer activity allows them to

express the values that directed them to legal careers in

the first instance. Many would like it if they could have

full-time public-interest employment in the market, as we

know it. When that is not possible, combining it with a


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private practice is the next best thing.

For the organizations that employ lawyers, you see

similar tangible benefits, in terms of retention,

recruitment, job performance, public image. In one

representative poll, which asked the public what could most

improve the image of lawyers, the response that two-thirds

of Americans chose was the provision of free legal

assistance.

Yet, as is all too clear from the statistics that

Larry just read off, many of these benefits are simply not

being realized by most law firms. I did an empirical study

across professions, a national sample of some 3,000 lawyers.

My study, as well as research from what data there is

available from the bars that do provide some information on

reporting of pro bono work, suggests that on the whole our

profession averages less than half-an-hour a week and fifty

cents a day in pro bono contributions, even as lawyers

liberally define the term. Little of that support benefits

the low-income individuals that are most likely to need it.

A lot goes to families, friends, middle-class organizations,


30

or deadbeat clients who become pro bono against the original

instincts.

Many legal employers prevent attorneys from

representing causes that might offend potential clients.

Many try to steer them away from the time-consuming but

urgently needed work, like death penalty representation.

Yet these are the issues where we have the greatest need for

assistance.

We also know that large numbers of lawyers are

unhappy with their pro bono opportunities. ABA’s surveys of

young lawyers consistently find that their greatest source

of workplace dissatisfaction is a lack of “contribution to

the social good.” In my own survey, about half of lawyers

reported dissatisfaction with the amount of their pro bono

work. The central problem involved employer policies that

failed to value public service, in practice as well as

principle. Only a quarter of the surveyed lawyers had

workplaces that fully counted pro bono work towards billable

hour quotas.

A final casualty of the bottom-line orientation of


31

legal workplaces involves quality of life. Here we know

that over the last half-century billable hours for lawyers

have dramatically risen. But what has not changed, of

course, is the number of hours in the day. So to bill

honestly at current levels often requires sixty-hour

workweeks, and the obligations in a lot of large firms are

even higher.

As one associate reporting on her “quality of

life” to a bar association put it, “What life? This is not

a life.” Most surveyed lawyers feel they don’t have

sufficient time for themselves and their families, and that

their employers do not fully support balanced lives and

flexible policies. Particularly in large firms, where

sweatshop schedules are most common, some lawyers report

difficulty having a cat, much less a family.

The adverse effects of those schedules, both to

lawyers and their employers, are well documented. For

lawyers, overwork is a leading cause of disproportionately

high levels of stress, substance abuse, reproductive

dysfunction, mental health difficulties, which all


32

contribute to performance and disciplinary problems that

carry a cost both for employers and for clients. Bleary,

burned-out lawyers seldom deliver efficient services on a

sustained basis, and excessive hourly demands also

contribute to widespread abuses, such as meter running and

fudging timesheets, as well as excessive attrition and

recruitment difficulties.

So where does that all leave us? Ironically

enough, in a book, called The Paradox of Success, John

O’Neil notes that monetary success brings many rewards but

not always the ability to enjoy them. For lawyers, the

priority of profits is often self-defeating. It squeezes

out time for family, friends, public service, and personal

interests that would ultimately prove much more satisfying

than the incremental income that is being generated by

excessive workloads.

Researchers consistently find that for individuals

at lawyers’ income level differences in compensation bear

very little relationship to differences in satisfaction, and

there is no relationship between compensation and


33

fulfillment across different fields of practice. Leaders in

law firms, bar associations, and legal education need to do

a whole lot more to convey that message and to suggest that

they do a lot more reinforcing of what most individuals

truly find of value in lives.

This Symposium, I think, is a welcome opportunity

to redirect all of us towards that mission, towards core

values and the role that they really ought to play in day-

to-day legal practice.

Thank you.

MS. FLESHER: Thank you very much.

Our final speaker is Lou Craco, who is a past

President of the Association of the Bar of the City of New

York. He is the current Chair of the New York State

Judicial Institute on Professionalism in the Law. Recently,

he retired from Willkie Farr & Gallagher, where he was head

of the Litigation Department for over twenty-five years and

on the Executive Committee for over thirty years. He is now

a counsel with Craco & Ellsworth, which I assume is probably

a lot of fun, because I think he gets to work with his son.


34

MR. CRACO: The way to solve the problem of quotas

that inhibit you from being with your family is to have the

hourly quota imposed by your son. Then you get plenty of

time with your son.

This panel is supposed to respond to the question:

Can law firms do good while doing well? The answer is yes.

I suppose I should quit while I am ahead.

I have listened to the impressive data that have

been paraded. I am familiar with some, if not all, of the

social science work that has been discussed. I am certainly

familiar with my friend Russ Pearce’s approach to this

subject. I agree wholeheartedly with the beginning of what

he said and the end of what he said, and virtually nothing

in between.

My problem with this – my fundamental problem with

this ― is one of style and emphasis. If, as I believe – and

I will take a few minutes to try to persuade you that I am

not loony – the answer to the question is affirmative, then

we need less piling on of sackcloth and ashes about the doom

and gloom of the big firms and the profession, and more


35

insight about how we cause to flourish those examples that

make the answer yes, that, in fact, abound and seldom show

up with emphasis in either the data or what ― you will

forgive me, Russ ― I call the somewhat cartoonish view of

the hired gun that is presented.

There is a certain nostalgia and romanticism that

accompanies some of these analyses. They are always denied,

but they are always there. For example, one of my personal

heroes is Louis Brandeis. I bear his name proudly and

pronounce it the same way. But Brandeis exhibited a certain

number of qualities that I think it is not impertinent to

bring up.

He was a superstar lawyer in Boston and across the

country. He was a multimillionaire, which he earned by

practicing law at a high level of aggressive profitability.

In order to achieve socially useful ends which made him

declare himself “the people’s lawyer” – not a bad publicity

stunt – he used instrumental advice to produce from his

clients what he thought were socially useful results – the

famous Brown Shoe case, in which he was able to achieve a


36

reconciliation between the claims of labor and the claims of

management. In his own article about it, he demonstrates it

was done by showing management why it was cost-efficient for

them to do what he thought was the socially right thing to

do. It is no disgrace – indeed, it is part of the lawyer’s

art – to find the instrumental reasons, the ways in which to

induce hardheaded businessmen to accompany you on the road

to a right result.

My argument ― which cannot be found in the data,

but which I insist on from fifty years of practice in this

City, forty-seven of them in the same law firm, a big law

firm, working in concert with other big law firms, and as

President of the Association of the Bar of this City – my

proposition is that same paradigm happens every day in

lawyers’ offices across this City, and gets no notice.

There is no publicity given to the train wrecks which have

been avoided and super-publicity given to those which have

occurred.

I think that that behavior by corporate lawyers in

transactional settings, day in and day out, not only in big


37

firms but in small firms across this state and across the

country, is itself a public good. It is itself, as was

pointed out by prior speakers, a service that lawyers

perform in the public interest.

My thesis, which others have heard me expound at

some length in other places, is that the private practice of

law is a public good. That is not normative. That is

descriptive.

We preach to China, we preach to the former

republics of the Soviet Union, that the first step in

creating a liberal democracy and an efficient economy is the

creation of the rule of law that permits reliable

arrangements to be made and the impulse of the majorities to

be restrained. That is done through law. It is as true of

a developed economy and a developed democracy as it is true

of those which are developing. The rule of law is

indispensable to an efficient economy, a liberal democracy,

and to the experiment that is America.

That rule of law is delivered in practice every

day by lawyers. As Paul Saunders once put it in another


38

forum, the practice of law is where the rubber meets the

road in terms of delivering the rule of law to real-life

people. Zakari’s analysis of liberal democracy in his book

The Future of Freedom makes the same point.

My proposition is that concealed beneath the

horror stories and the social data is a fact of enormous

importance: That lawyers, in fact, give Brandeis-like

advice to corporations and their executives all the time.

They give prudential reasons – I have given prudential

reasons ― why clients ought to do what I conceive to be the

right thing: “You can do this or you can do that. If you

do that, did you see the perp walk that the last guy who did

that took? You like it? You want to join it?” There are

all sorts of ways of putting it.

But my first proposition is that the Brandeis

model is not dead, and, in fact, is thriving in the actual

practice of law, and that it is, in itself, activity in the

public interest.

I would like to use a moment or two to talk about

the question of pro bono. There again, I am going to take a


39

contrarian view to that of several of my colleagues. I

think, like Mark Twain, news of the death of pro bono is

greatly exaggerated.

First, let me be clear about it. I concede

without a hiccup that the business emphasis that we have all

been talking about all day is a constraint on the ability to

perform free legal advice, because it displaces the time

that would otherwise be spent on providing for paid legal

advice. But I don’t think that is the only constraint, and

I rather think it is not the most important constraint that

happens in large firms these days.

If I were asked to pick the most important

constraint, it would be an odd one, I think. In my

experience, the very diversity of the profession as it has

emerged and the political polarization of the last fifteen

or twenty years has rendered almost all causes

controversial.

If you want to invite a firm to allow its assets

to be contributed freely to the advocacy of a cause – be it

amnesty cases for Middle Eastern refugees or reproductive


40

rights or legal access to housing court or the Patriot Act –

there will be controversy in the firm as to whether or not

it is something that the firm, qua firm, ought to do. That

is a constraint on the ability to mobilize firms, qua firms,

behind some of these things.

On that score, the definition of what pro bono is

and what causes are worth backing, it is probably worth

remembering that the most significant pro bono contribution

made by Davis Polk in the late 1950s was John Davis’s

advocacy on behalf of South Carolina in opposition to the

school segregation cases – all done free.

But I would argue that, despite all those

constraints, whether business constraints or political

constraints, pro bono still thrives. I understand what the

Am Law 100 displays, and I understand what the data display.

But twenty years ago I had the chance to put together an

organization called Volunteers of Legal Services in this

City, which exacted from big firms in the city a pledge of

thirty hours per lawyer per year of public service. Just

last year, we celebrated our twentieth anniversary.


41

Thirty-nine major law firms in the city reported

to us – and reported convincingly to us – their compliance

with that pledge. The aggregate amount of time spent on pro

bono by those thirty-nine firms was in the range of 663,000

hours during that year.

We were able to provide services to children with

special needs in eleven hospitals in New York City. We had

a program for the elderly poor, in which volunteers made

house calls to those who couldn’t get out. We dealt with a

whole variety of issues that the elderly poor experience.

We created an innovative program for low-income micro-

entrepreneurs, which attracted sixteen major corporate law

firms to provide corporate lawyers to create business

opportunities for persons who were ousted from welfare by

the Welfare Reform Act and wanted to go into business.

We had volunteers in the women’s prisons,

providing legal services to incarcerated mothers who faced

such problems as the fact that if a sentence exceeds two

years and they don’t see their children within those two

years, a federal act – can you imagine? – a federal act


42

automatically terminates their parental rights.

When we speak of it only being the younger people

who do it, I remember the initiation of our project to

provide life-ending advice to persons with AIDS, and the

senior partner of Milbank, Tweed going out to the hospitals

and working with teams of people from that firm and others

to do wills and proxy and living wills and the rest of it.

We have created neighborhood law offices, where

interns from the big firms go. We in Willkie Farr send an

associate, whom we pick as a prize from the people who apply

for it, from among our most promising associates, to go for

six months to Chinatown and work in the Housing Court and

the Domestic Relations courts there.

The roll of honor of these thirty-nine firms –

Arnold & Porter, Cadwalader, Cahill, Cleary, Clifford

Chance, Cravath, Davis Polk, so forth and so on – are not

the cheapskates; they are not the small ones; they are not

the ones who practice on the fringe. They are somehow not

captured by the data in both the quality and quantity of

what they do.


43

One last example, if I may. I don’t know how you

get this out to the people who say that they would like to

have free legal advice as the first element of their

improvement of the view of lawyers. How do you tell them

about Cravath, Swaine & Moore’s long tenure in the Census

case, which brought better representation to the City of New

York? How do you tell them about my daughter-in-law, who

just became a Partner at Kaye Scholer, who is about to go on

trial in an antitrust case and for three years has been

working on one of those death-penalty cases that we have

been discussing?

How do you suppose City Harvest got created to go

out and collect spare food from the restaurants of New York

and distribute it to the poor? Corporate lawyers at Willkie

Farr did it for free. How do you suppose the regulations

that turned Soho into a vibrant community of artists and

merchants happened? Real estate lawyers from Willkie Farr

did it for free. How do you suppose the regulations to

reform Riker’s Island prison regulations got created?

Litigators from Willkie Farr did it for free. How do you


44

suppose the sergeant’s exam for the New York Police

Department took different account of patrol experience,

which had the practical effect of excluding women?

Litigators from Willkie Farr did it for free. Where did the

inventive use of nuisance law to civilly oust drug dealers

from apartments where they were harassing other clients come

from? Litigators from Willkie Farr did it for free.

I don’t claim – indeed, I insist to the contrary –

that Willkie Farr is special in this. I insist that it is

usual.

The art, it seems to me, is how we can take the

insights that motivate firms like these to do those things

and encourage them. They are there, and indeed, big firms

can do good while doing well.

MS. FLESHER: Thank you very much, to all the

panelists.

I would like to open it up for questioning. I

know some of the panelists have been writing comments. I

don’t know if you want to start.

For those of you in the audience, we have been


45

asked to use the microphone this time around, so just raise

your hand and I will bring it to you.

Does anybody on the panel want to start?

[No response]

All right, I will start. I have a question about

what you all think the effect of Sarbanes has on a lot of

these issues that you raised, both in terms of the attorney-

client privilege issues that were mentioned this morning,

and just in terms of giving advice and making sure that

ethically the right things are done. Can you speak a little

bit to the imposition of that obligation on lawyers and how

it affects their ability to do good?

MR. FOX: I only see bad coming from Sarbanes. I

think the nature of what I am seeing Sarbanes creating is

kind of a defensive practice of law. Maybe that is

preferable in some ways, but I think lawyers are giving far

more conservative advice, in not a good way, and lawyers are

finding themselves uncomfortable about the question of

whether they are taking over the role of principal in the

lawyer-client relationship because of their defensiveness.


46

I don’t know that I have made myself clear. I

think that one of the things that Sarbanes does is change

the nature of the lawyer-client relationship much for the

worse. I think that clients should be taking responsibility

for their decisions, and lawyers – in my limited experience,

watching this play out – seem to me to be taking a more

active role on the side of things where lawyers don’t have

particular expertise in terms of warning about business

risks and things like that that I don’t think lawyers should

be dealing with at all.

PROF. RHODE: Predictably, I will totally

disagree, while pointing out that neither of us has any good

empirical data. Part of the problem, I think, in trying to

evaluate proposals on lawyer-client confidentiality is that

they are made in a complete empirical vacuum. The defenders

of strong confidentiality principles always claim that this

is going to erode the lawyer-client relationship and do all

the things Larry just described, and people like me say, you

know, that way lies the kind of Enron and savings and loan

debacles, and lawyers’ complicity in terrible health safety


47

disasters.

A little whistle blowing would be a very good

thing, and anything that stiffens the backbone of the bar,

including legislation like Sarbanes-Oxley – which doesn’t

even require external reporting – for anyone in the audience

who doesn’t know, it just requires lawyers to go up the

channel and make sure that the board knows, in circumstances

where there is a risk of a material violation.

So I think that the claims about the devastating

impact that it would have on lawyer-client relationships

have pretty much been vastly overstated. Most professions

in most historical periods in most countries don’t have

anything like what the American bar claimed prior to passage

of that legislation. It was the role of lawyers, in part,

in some of the major scandals that led to passage of the

legislation. I think we have to look really carefully at

our own complicity and failure to clean up our own house,

instead of blaming external regulators for overbroad

statutory protections, if that is what they think we got

with Sarbanes-Oxley.


48

I think it is a step in the right direction. But

we don’t know how much of the problem it really deals with,

whether there are the kinds of adverse consequences that

Larry suggested, whether those could be dealt with in some

other way than going back to the status quo, which

effectively absolved lawyers and clients from a lot of not

socially very acceptable conduct.

PROF. PEARCE: I share concerns of both Larry and

Deborah, which may not seem possible after their

diametrically opposed views. But here is where I would come

out on this.

First, I think you have to separate the Sarbanes-

Oxley provisions for corporations and the Sarbanes-Oxley

provisions for lawyers. I am certainly not expert on the

corporate provisions, but from what I know, I think that

does move in the right direction. It provides the kind of

grist for the kinds of conversations that Lou Craco was

suggesting between lawyer and client.

I take into account what Deborah said. We don’t

really know about the lawyer provisions, empirically, in


49

terms of what is going to happen. But my instinct is that,

given the prevailing ideology of lawyers, Larry is probably

right and that what is going to happen is that lawyers are

just going to be defensive. I think what is most

important – and it is also something that I am sure Deborah

would encourage – is that there be a conversation between

the lawyer and client about the appropriateness of the

client’s conduct. I just am not sure – in fact, as Larry

was saying, I suspect that it is not going to be the case

that Sarbanes-Oxley is going to make much of a difference

either way.

Part of the problem is, whatever you think about

Deborah’s view on confidentiality, and Larry’s, and whether

this is internal or external, we have a culture that is very

dominant among lawyers which does not support conversation

about the morality of the client’s conduct.

MS. FLESHER: One thing that this panel didn’t

touch on much, which was mentioned this morning a fair

amount, is the role that law schools can play in the process

of preparing lawyers to do good while doing well. I am just


50

curious if any of the panelists can talk a little bit about

what role law schools currently play in educating law

students about their role of serving the public good.

I would also be curious about whether there is any

empirical data showing that for most law students that go to

law school that that is their main reason for going, to

serve the public good. You certainly don’t see that when

you are out in the law schools recruiting for a big firm.

But I understand that issue. Maybe some are, but many

students ― I am guessing ― have other reasons for going to

law school, and they need to be educated about that role

that lawyers play in society.

I guess I would like to hear what law schools are

doing, and maybe what they could do differently to help

better prepare and educate these students to become the

leaders of serving the public good going forward.

MR. FOX: I teach as an adjunct at Penn, and Penn

Law School has a public-service hour requirement that

second- and third-year law students are required to fulfill,

by either working with a law firm or a public-interest law


51

firm, actually undertaking, I think, seventy hours across

the two years on a particular assignment. They can have as

many as two different assignments.

My sense is that the law students – and this is

only anecdotal – all fulfill their requirement. They have

to to graduate, so they do it. I think, in that sense, they

do it conscientiously. Among some of them, there is great

resentment. They will mouth the same words that people who

talk about mandatory pro bono for lawyers will say –

“involuntary servitude; why is this law school making me do

this?” Some of them are so gratified and excited about the

opportunity to spend that short period of time working on an

assignment – I suspect that a lot of it turns not so much on

their ingrained attitudes toward pro bono, but whether they,

in fact, get themselves a rewarding assignment with somebody

who is willing to sit down and spend the time with them

working.

But I think the idea itself is brilliant. Penn

continues to be very happy with it and continues to support

it. It takes a huge allocation of resources in order to run


52

a program like that, but it is a great way to start. It is

a great way to instill the idea. Somebody is going to catch

a cold, even if they all don’t catch a cold.

PROF. RHODE: I know there were some questions

from the audience, so we should give them a chance to weigh

in. But just a couple of points.

In answer to your empirical question, if you ask

why most people pick law as a profession, financial reward

and intellectual challenge are two at the top of the list.

But some desire to do good is a large motivating factor for

a substantial number. So reinforcing that is a possibility.

Contrary to what some of the empirical literature suggests,

many students graduate with that commitment intact. What

changes the desire about placement for those who come in

with public-service orientations is the job market and the

gap in salaries and the lack of positions available in the

public-service sector.

On the pro bono point, a word about what my study

found. Part of the reason I did it was to find out whether

different experiences in law schools translate into


53

different commitments towards public service in practice. I

looked at six different schools, with three different kinds

of policies: Penn and Tulane, which had the first mandatory

programs and probably have the best supported; Fordham and

Yale, which I classified as two of the schools with the best

voluntary, really well-supported program, reinforced by the

culture; and then two schools which didn’t have an active

pro bono program, didn’t have a coordinator, but who were on

a similar sort of status level as the others.

To make a lot of data crunching very short, what

the study suggested is that having a good experience doing

public-service work matters, but you don’t have to have that

in a pro bono program. You can have it, for example, in a

clinic. Just being in a pro bono program doesn’t guarantee

that you have that kind of experience. I had a lot of

people talking, for example, about the Penn experience, and

where people were unhappy, it was because of the quality of

the placement opportunities that were there. But those

problems were much less substantial than people often

estimate.


54

I think a really good thing would be if all law

schools moved in the direction of either having mandatory

policies or very well-supported voluntary policies, where a

lot of students get reinforced.

Nonetheless, the final sobering note is that the

pro bono experience did not bear a statistically significant

relationship with what you did in the real world. Even if

you had a great experience, the structures in which you

found yourself in practice just sort of dwarfed a lot of

those inclinations. So people have to make a commitment to

go to an employer that is going to provide sufficient

recognition for doing the kind of work they want, if they

are going to do it on a sustained basis. They need to vote

with their feet, which is an argument, I think, for what law

schools need to do and must do.

I think one of the most appalling findings that

came out of my study is, in asking those students from

across six different schools what emphasis their schools

placed on pro bono activities, only 1 percent of respondents

to that survey said that it was discussed to any significant


55

extent in either their professional responsibility course or

in their orientation programs. So we are really missing the

boat here as a profession if that is what the students take

from their educational experience. We need to educate them

much more about the rewards of pro bono and the kinds of

descriptions that Lou movingly provided.

We also need to do a lot more to educate them

about making appropriate value choices at a formative stage

in their career, and to get them to ask not just the

question Larry suggested – to those who are applying for

jobs, not just, “What is the firm’s policy,” but, “What is

the actual number of hours, and do you count it towards it

towards billable hours? How many lawyers make partner who

have had substantial pro bono commitments?” – and get people

to think seriously about the value choices that they are

making, not just offload that entirely onto the placement

offices.

PROF. PEARCE: I want to take a slightly different

view on this. I think law schools are the heart of the

problem, because what we are doing in law school is


56

perpetuating the dysfunctional system that I described in my

talk. It is in law school that students are taught that

they should be amoral, and it is in law school that students

are taught the business/profession dichotomy, that they

divide their world up into being saints or sinners. You

hear that in class, the familiar story of the student who

raises her hand and says, “Professor, that solution would

not be just,” and the professor says, “We’re not here to

talk about justice. We’re here to talk about law.”

You see that in ethics, which is, at best, a

second-class subject. It is not in the first year, like

“real” subjects that are important are. When it is taught,

it is usually “Simon says” doctrine, and not really talking

as – and I want to commend the program that won the award

for teaching ― it is really not about what it means to be a

moral person and a lawyer.

Second, I want to get to my point about pro bono.

My fellow panelists have been very good to me. But what I

was trying to say is that pro bono as we talk about it today

is the problem, it is not the solution. I will just give


57

you a quick anecdote about how pro bono can be seen – it is

from a movie – can be seen, as I have argued, from its

inception as a duty, to marginalize the public good, to put

the public good in the fringes of legal practice.

There is a great scene in Changing Lanes. The

junior partner of a firm is very upset. He is upset because

his firm has just filed a fraudulent document with the

court. The senior partners try to calm him down. They say,

“Look don’t worry about this. We’ll send you to Texas for

six months to work on a death penalty case and you’ll forget

all about it.”

PROF. CUNNINGHAM: I wanted to continue to follow

up on the role of legal education. As to empirical

evidence, there has been a lot of – Howard Erlanger, who is

both a sociologist and a law professor at Wisconsin, did a

famous study, where he studied the attitudes of law students

when they started law school and then as they got out. It

showed a very dramatic shift in priorities. I think there

are other studies that do indicate a kind of cynicism and

change of view about things that happen during law school.


58

Anecdotally, I gave a talk to a diverse group of

lawyers at a breakfast meeting in Atlanta two years ago, and

I picked as my topic “Does Law School Make Us Worse People?”

That group of lawyers could have spent the whole day listing

all the reasons they agreed with that. It was really

remarkable – really, really remarkable. They went to law

schools all across the country. They told all the same

kinds of stories.

I am in legal education. Lots of good things

happen in law school, but it is also a kind of “heart of

darkness.” The profession could be doing more to force

legal education to change that.

The last thing that I was thinking about when I

listened to Larry – I teach professional responsibility; I

teach the Model Rules ― I am actually thinking that we

underestimate the damage done by things like having the pro

bono rule be unenforceable. I think we think about the

Model Rules, when they are actually implemented, as having

two major functions.

One is purely regulatory. That is, they are the


59

rules by which you decide whether people get disciplined or

not. That actually, I think, affects a very tiny portion of

the profession. With most people who get disciplined, it is

for very straightforward – stealing client money and that

sort of thing.

The second was the idea that people who aren’t

ever going to get disciplined are going to go pull the Model

Rules off the shelf and think about them when they are

making decisions. My anecdotal evidence is that most

lawyers don’t. I am afraid, in Georgia – we have had a

whole new set of rules since 2000 – my anecdotal experience

is most lawyers don’t even know that we have a new set of

rules which are different.

I think the biggest impact of the Model Rules is

that we make every law student take a course and study them.

I think that is the biggest effect. That becomes the

primary point in law school in which the profession presents

itself to future lawyers. When the profession presents

itself to future lawyers with the only unenforceable rule

being pro bono, that is a very serious thing. When the


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profession presents itself to students with an absolute

persistent refusal, every time it comes before the ABA, to

make fee agreements in writing, that is a terrible message.

In my state, Georgia, we have after a rule what

the maximum sanction is. Some things are only punishable by

reprimand, like the fee rule. Advertising is, on the other

end, punishable by death. The rule about reporting an

attorney misconduct says, “There is no sanction for

violating this rule.” I don’t think the State Bar in

Georgia has thought about it for a while, but it is terrible

for me to have to tell students that that is what the

profession does.

So I actually think that – Larry’s point – we

really ought to think much more about this, not just

symbolic, but what we are telling students when we make them

study these rules.

MR. CRACO: Just one sentence in response to that.

I think it is very – I won’t say “terrible” ― but I think

it is unfortunate when, in law school, the profession first

presents itself as a bunch of rules, which, like the Tax


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Code, can be gamed and played with.

One of the reasons why our winner won is because

his introduction to the process starts with the question of

“what you think it means to be a lawyer. Why do you want to

profess this profession?” It talks much more deeply about

what it is all about than a bunch of rules.

Until law schools, generally, get comfortable with

that idea, I think there is going to be the kind of “heart

of darkness” that you described.

Two sentences. I broke my word.

The other is that there is a strategic importance

to the law schools doing that, in my view. I might as well

say it in this law school that I like so much. You are not

going to be able to achieve systemic change in big law firms

about things like the billable hour or alternate work styles

or things like that by preaching to the senior partners of

those law firms that they should take less money home. You

may have some success if you surround them with the

constituencies to which they do pay attention.

One of those is their clients, who might find, as


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was suggested in an earlier panel, that the billable hour is

offensive to them, for a variety of instrumental reasons,

and their pool of talent, which is the law schools, which

can as easily create, if they were so minded, a list of best

practices about diversification or about alternate

lifestyles or about billable hours, just like they did about

the Sullivan Principles on apartheid not too many years ago,

and send the law students off to the placement interviews

asking the law firms, “Do you do this?”

If that kind of pincher movement can be developed,

constituencies that the decision makers at law firms pay

attention to can start to have an incremental influence,

over time, but not if the law schools don’t believe it.

MS. FLESHER: I think our time is up, so we need

to wrap up.

I would like to thank our panelists once again for

their great insights and for their time on this panel.


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