Perspectives on "Big Law." Part two

     "Clients of law firms may well decide that a law firm that cannot defend itself from Trump cannot be trusted to defend its clients' interests either."

         John Shutkin

I have always been happy with the legal help I have received. It has been little things: a will, a business purchase, a property line easement, a couple of different living trust issues. The lawyers communicated that they understood themselves to be fiduciaries, people with professional ethics that guided their work. They did not communicate that they were factory owners who manufactured as much of a product as possible, the product being invoices charging clients for legal services. They each sent a bill, of course, but the bill seemed incidental to their primary task, which was solving my problem. The invoice wasn't the purpose of their work. 

We are a long way from Big Law here in small-city Medford, Oregon, but my personal experience is that lawyers were trying to serve my interests, not their own. But my experience isn't universal, even here. I spent eight days auditing a trial last year that focused on the issue of billing for legal services. 

Like Adolfo Garcia, who wrote yesterday's post, John Shutkin is a college classmate with first-hand experience with Big Law. He refers to himself as a "retired (recovering?) corporate attorney, with experience both at Big Law firms and as an in-house general counsel."

Guest Post by John Shutkin

Big Law in 2025: A Big Disappointment (Mainly)

Peter posed to me this question: "Do you have a perspective about Big Law and the incentive structure of the existence? I have a romanticized and naive view of law as a profession — officer of the court —ethics rules — duty to the profession — and am disappointed at their behavior.”

I share Peter’s disappointment. But, as with many things (though not Trump’s malevolence), it’s complicated. I joined my first law firm out of law school in 1974 because it had recently won the Pentagon Papers case for the New York Times. It got the case because the Times’ regular outside firm had refused to take it on. Ironically, though, that decision had itself been made as a matter of principle, not for fear of Nixon’s “Enemies List.” That firm’s senior partner (Herbert Brownell) had been an attorney general under Eisenhower and felt strongly that his firm should not be complicit in the publication of illegally released top secret government information. That decision cost it one of its largest and most prestigious clients. (Of course, the lawyers who worked on the Pentagon Papers case for my law firm did make the Enemies List – which they proudly proclaimed in future years.)

That said, it is not accurate to romanticize Big Law of yesteryear. Making the partners a lot of money was always the ruling principle, and I have many stories of utter ruthlessness towards that end from Back In The Day. But partners rarely moved from one firm to another then, both out of a sense of two-way loyalty and restrictions in their partnership agreements. However, recent interpretations of legal ethics rules to protect clients, given the law of unintended consequences, have meant that “rainmaker” partners can and do move from firm to firm as freely as free agent pro athletes do, and, perhaps more accurately, like managing directors at investment banks, who often search for an even better deal at another firm each year right after they receive their bonuses. Accordingly, the stress at Big Law firms is always on maximizing profits this year, because who knows what “team” you will have next year?

In theory, ethics is still there — I was later general counsel of a Big Law firm, so I know all about that — but client retention and partner compensation remain paramount. And, sadly, that is what has driven some formerly great Big Law firms to shamelessly sell their souls to Trump, despite having strong legal, ethical and moral grounds not to do so. As one of the resistant firms, Susman Godfrey, put it, deciding to resist was not, in fact, a hard decision; it was a very easy one.

But even soulless pragmatists can make the wrong business decisions. I'm hoping that enough clients decide to walk because they feel that a firm that can't defend itself can't defend them. I was a general counsel for large accounting firms with large outside counsel budgets, and I engaged lawyers at several of the surrendering law firms. I would have dropped them like a rock – and told them exactly why – and re-directed my business to Perkins Coie and King & Spalding (which is representing Harvard) -- firms I also happily used. I imagine other general counsel will be doing the same. I also sense and hope that many top law students/young lawyers won't apply to or will leave these weak-kneed firms. If so, these firms will have been made not richer but poorer in the only currency they seem to value. May the Trump Remorse begin!

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