Outgrowing the Cultural Foundations of BigLaw

The general explanation for the lengths BigLaw is willing to go to preserve its antiquated and crumbling structure lies somewhere in the engrained legal culture of the large law firm.  The relevant actors have tried to maintain the hierarchical dynamic of its origins in the face of markedly different business environments. In turning to the staff attorney business model as a solution, law firms are actively trying to sustain a cultural and business model that is arguably out of touch with economic reality. In other words, BigLaw as a whole faces a complex existential crisis. The disparity between its coping mechanisms and the increased stresses placed on its business model has been large for some time now, but the recent economic crunch has merely forced things to a decisive breaking point.

More than a hundred years ago, Paul Drennan Cravath of today's Cravath, Swaine & Moore tried an innovative approach to building a law firm. He went out in search of the best cogs for a lockstep legal behemoth, gathering the best and brightest young lawyers from the top law schools, paid them salaries, and mentored them in how to become great litigators. As an associate, you could stay at the firm as long as you were "promotable," meaning that you had roughly eight years to make partner or you were out.[1]

This early 20th century Cravath model (also known as the "Up or Out" model) quickly became the accepted standard for the rest of the law firms. Its success depended on a series of interlocking factors. The high billing rates depended first of all on legal mysticism, where the firms were able to sell themselves as experts opening doors for clients who would otherwise be lost in the morass of statutory and legal complexities. This high-priest/oracle take on legal counseling grew out of the strong personal relationships that acted between client and lawyer, where the image of the attorney is almost that of the TV lawyer, the trusted family friend called immediately when the legal system butts heads with the client.

With the growth of the BigLaw model, the firm as a whole entity becomes the contact point for business clients and face-to-face personal counseling took a backseat to more generalized and depersonalized legal work. Lawyers at firms thus moved away from the role of the family friend and instead more towards that of a functional actor providing a service product in the form of a needed brief, contract, or similar results defined broadly. The trajectory of the slippery slope seems almost predetermined, or so you would think. As the client-attorney relationship shifted towards more depersonalized legal services, the leadership of firms themselves should have realized that the role of the associate as a front-line contributor to a client relationship was no longer viable, which would have meant less emphasis on paying out exorbitant costs to sustain a collection of prestigious law degree holders.

In other words, as the work given to new associates devolved into document review and other menial tasks that anyone even without a law degree could complete, the connection between the Cravath model's emphasis on eliteness and the business payoff became weak enough to be practically non-existent. There no longer was any credible reason for differentiating a staff attorney and an associate, which means that the dramatic wage gap between the two just did not map onto financial reality.

[1] Gabe Acevedo, Could Legal Technology Take the Cravath Model 'Back to the Future'?, Above the Law, Feb. 25, 2010.

Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School.   BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.

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