Trusts & Estates and the “Businesslike” Practice of Law

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Category: Legal Education, Legal Ethics, Legal Practice, Public
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In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.

 

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9 Responses to “Trusts & Estates and the “Businesslike” Practice of Law”

  1. With due respect, in this terrifying job market people cannot eat values or pay their enormous student debt with gentility. The people who are hiring want candidates with a practical, useful skill set. In a perfect world where law firms still wanted to train new hires, schools could afford to focus on the behavioral side, but in this market and the market for the foreseeable future, the main focus must be on training competent and capable lawyers who can do a job on day one. And, in all honesty, that still isn’t being accomplished.

  2. Institutions putting their students in absolutely crippling debt should be deeply ashamed to even hint at criticism for their students’ “profit seeking.”

  3. Rayiner Hashem Says:

    Having experienced both law school and the inside of a white-shoe Manhattan law firm, I can say without hesitation that law schools are more of a business than law firms. After all, when a young associate wastes 20 hours to do a 5 hour assignment, a big law firm will write off his time as a courtesy to the client. When a law professor wastes hours on tangents instead of teaching the course material, law schools do not write off tuition fees as a courtesy to students. If a case finishes up earlier than expected, a big law firm will not charge the client for the remainder of the time. If a student finishes up in fewer semesters than expected, a law school will still charge tuition for the unnecessary semesters. Etc.

  4. Kristin Lindemann Says:

    Professor Papke, with all due respect, I strongly disagree with your suggestion that law schools should reduce legal skills training. The practice of law has always been a business. Isn’t that how your interviewee got that corner office on Wall Street? Does the “genteelness” of Trusts and Estates make it superior? Is helping wealthy folks on the East Coast set up their trusts (likely to avoid tax liability) somehow of a higher moral value than facilitating mergers and acquisitions? The market economy is affecting the legal profession, but taking away our practical skills training isn’t going to fix the problem. Law students are saddled with too much debt upon graduation to be prevented from “hitting the ground running.” Maybe the fact that these “big law” firms are dropping their Trusts and Estates groups will allow smaller firms to take on this business in a more affordable manner. The market economy may work in this regard to the benefit of new, young lawyers who need employment. Just because we need to make enough money to pay back our student loans doesn’t mean that we are seeking “unbridled profit” or are lacking in ethics, professionalism, or humanistic values.

  5. Market forces will continue to affect all areas of legal practice. As you point out, some large firms no longer take Trusts and Estates work because it doesn’t pay enough. On the other end of the spectrum, I am a sole practitioner (criminal defense), and I stopped taking public defender appointments years ago because they don’t pay enough. However, this is no reason for legal educators to scale back training on how to actually represent clients and how to actually practice law. In fact, legal educators are also affected by market forces. With law school applicants plummeting across the country, only a handful of schools can still afford their “business as usual” approach. (Law schools have proven that they, like law firms, are indeed businesses.) The rest of the schools, including Marquette, need to find ways to incorporate the things you mention – e.g., “ethics” and “professional norms” – into practical training. In fact, presenting a choice between one or the other is a false dichotomy. The two are inseparable. It is impossible to fully grasp the theoretical without the practical, and vice versa. It is impossible to appreciate the abstract without detailed examples, and vice versa. Finally, the decision to scale back on skills training, or the decision not to train students to “hit the ground running,” won’t keep them (as new graduates) from trying to “make a buck.” It would just make them even ill equipped to accomplish their goal.

  6. Cole, Shawna, Rayiner, Kristin, and Michael,
    Thank you for your thoughtful, albeit negative, comments regarding my post. The comments have helped me further shape my thoughts about the nature and direction of legal education. In particular:
    (1)I’m of course aware of the huge debt burden taken on by many law students, and it saddens me to see how it affects student aspirations. Many back off lower-paying jobs in the public sector because they fear they will be unable to pay off their loans. Debt is in itself a major way people are drawn, sometimes irrevocably, into the private sector and the market mindset.
    (2)There are some for-profit law schools in California and elsewhere, but, acknowledging the possibility of a false consciousness on my part, legal education in general does not seem like a business. Legal educators have to worry about institutional viabilty, but faculty and administrators are not in this line of work to make a buck. In fact, we could all make more money in private practice.
    (3)There’s no bright line between the two, but I distinguish between training and education. Trainers discipline and instruct their charges in obtaining certain varieties of physical and mental dexterity, while educators try to encourage personal growth through the acquisition of knowledge. Law schools are designed to be educational institutions, and education is what they do best.
    (4) Surely there’s a place for some skills development in law school, and the Marquette Law School is fortunate indeed to have excellent legal writing and internship programs. But why can’t the bar take responsibliility for the wider range of skills development? The bar’s increased hesitancy to do so is in fact another “businesslike” decision in the legal community.
    Thanks again for your great input and rest easy knowing I am hardly in charge of legal education.
    David Papke

  7. Kristin Lindemann Says:

    Professor Papke, thank you for your response. I have no doubt that you sincerely believe in the value of education. As someone who spent over a decade debating whether to pursue this degree, I can tell you that the decision for many of us is not determined by the education itself, but by how it will help us achieve the career we want to have after graduation. I’m not sure your comment on the decline in the number of students choosing public sector jobs is accurate. Most of the students I’m acquainted with hope to work in the public sector, and I’ve actually read articles about Ivy League law graduates who are have having to “settle” for big law jobs because they can’t get public interest work. The possibility of loan forgiveness is actually luring in students who might not have otherwise considered public interest work.

    Additionally, I think the answer to your question about why the bar won’t take on the training of new lawyers anymore is that clients are no longer willing to pay that cost. If the firms can’t get the clients to pay, then the firms don’t have the means to provide the training. If the firms can’t train new lawyers, then they either change their hiring practices to only hiring laterally or expect the new lawyers they hire to have the skills to do the firm’s work on day one.

    I understand your concern about taking the time to train law students to think and to be ethical and experience personal growth. Lawyers are paid to think, and to counsel. But they are also paid to do – to write estate plans and contracts and motions, to interview clients and argue in front of judges. If law students do not gain at least some of these practical skills while in school, in the current market, they will not find employment upon graduation. If recent graduate employment numbers drop, the ranking of the law school will be affected, which in turn will affect the quantity and quality of the applications it receives. Thus, law schools need to be concerned not only about the outcomes for their students but for the future of their institutions.

  8. The two situations that the professor describes perhaps existed when I graduated (Dec. ’99), but no longer today. For example, graduates are no longer passing on public sector jobs to take higher paying jobs in the private sector, as many in my class did. Rather, many graduates today are unemployed or have taken low-paying, non-legal jobs. The market has changed dramatically since I graduated. Because law school is so profitable, schools have expanded and new ones have sprung up. But today, poorly-ranked schools and schools in saturated markets could be in trouble. Law school applicants have fallen from a recent high of more than 100,000 to a projected 55,000 for the entering class of 2013. Marquette is not in a saturated market for law schools and its rank is nearly dead-center, so hopefully it won’t be impacted too harshly.

    And the days where law profs could make more in the private sector than teaching are largely gone as well. In fact, the only place to make anywhere near what a law prof makes is at a large firm, where billable hour requirements are crushing, the stress level is insanely high, and the quality of life is poor. But even if this higher-paying option was available to profs, life is exponentially better in “the academy,” which is why they are there, rather than at the law firm. Law profs have amazing hours, a very light publication requirement (typically one article per year, at most), an incredibly light teaching load compared to college profs (one or two classes per semester), only one test per class to grade, and, most importantly, they get to think, talk, and write about interesting things—something that the rest of us have to do on nights and weekends after arguing in court or combing through contracts all day long.

    The original post and the comments have raised several other interesting issues. I plan to address some of them at http://www.thelegalwatchdog.blogspot.com in the coming days, if anyone is interested.

  9. “I’m of course aware of the huge debt burden taken on by many law students, and it saddens me to see how it affects student aspirations. Many back off lower-paying jobs in the public sector because they fear they will be unable to pay off their loans. Debt is in itself a major way people are drawn, sometimes irrevocably, into the private sector and the market mindset.”

    Huh? Most law students would kill for a public sector or nonprofit job, and the access to loan forgiveness such positions grant them. If you know of any public sector jobs that are not getting thousands of applicants the week they are posted, I know several Northwestern Law grads and 3Ls who want to know about them.

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