From the Professionalism Committee

AT THE RECENT Midyear Meeting, members of the Bar came together to promote professionalism with a discussion of related issues and ways to incorporate professionalism into our daily practices. As we strive to maintain professionalism in the practice of law here in New Hampshire, a good place to start is in our own backyards, taking a look at our own firms and partnerships.

Martha Neil discussed how emphasizing the practice of law as a business impacts professional values. In "Brave New World of Partnership," published in the January 2004 issue of the ABA Journal, she points out: "The tendency in a competitive business environment is to emphasize law practice as a business. With that mindset, the need—or desire—to maximize profits trumps traditional professional values that include loyalty to one’s partners, even in the face of their failings."

Partners who don’t meet present-day productivity standards can be, and often are, expelled or demoted, forced into non-equity partnerships or senior counsel positions, says David H. Maister, a legal consultant in Boston. He explains: "In the past, if some partners were very good at business development and others were less so, law firms tended to take a relatively tolerant view of that and just say, ‘Ah, well, people play different roles.’ Now, there’s a lot more follow-up that takes place, and the extremes of performance on the downside are not accepted."

In her article, Neil quotes a bankruptcy lawyer who discusses being an equity partner in a large firm. "When people get there, they see that it’s an awful lot of hard work—a lot of demands on your time, and a lot of pressures to perform." The partner cites the need to bring in business, and the need to keep busy despite a higher billable rate that discourages colleagues from assigning work to their partners.

When there is an over-emphasis on billable hours, productivity standards, and money collected, it is difficult to assess, acknowledge or value the various contributions attorneys make in promoting professionalism.

Mentoring and providing support to attorneys and staff in the firm is an integral part of professionalism, but it is also time consuming and takes away from billable hours. The same can be said of doing pro bono work, being on Bar committees, or performing civic activities. An over-emphasis on billable hours can pressure a partner or associate to take or keep a case that he or she does not have the competence or expertise to handle. It can also lead a partner into not assigning work to other partners with greater expertise in the matter or who might be available to do the work sooner.

One of the ways the participants defined "professionalism" at a November 1998 NH Bar Association Professionalism Conclave was "not money-driven." They characterized a "not money-driven" lawyer as one who:

• Sees the practice of law first and foremost as a profession, secondarily as a business … when conflict between the two arises the ‘profession’ wins out over the ‘business’;
• Makes legal decisions irrespective of the monetary consequence (for example, generating fees, billable hours, becoming wealthy);
• Resists business pressures that could keep one from doing a good job as a lawyer.

(See "Summary Report of the NHBA Professionalism Conclave," New Hampshire Bar Journal, June 1999).

In the five years since the Professionalism Conclave, the pressure on the legal profession to perform as a business has increased not lessened. Perhaps it’s a good time to look at the policies and practices in our own firms, the messages we convey to associates and partners, and the culture that is fostered.

Despite the economic pressures that firms face today, the practice of law must first and foremost always be a profession. When I was a new associate, in my first months in private practice, I met with some potential clients. After our initial meeting, I did not feel comfortable representing them. I remember going to the senior partner to discuss why I would rather not take the case, and being concerned because of the fees that would be lost. The partner’s response to me has stayed with me for more than 20 years. He told me to follow my own judgment and to make my decision regardless of the financial consequences. To paraphrase him: "This firm doesn’t need the money so badly that you should take a case you are not comfortable with, for whatever reason, and if the day ever comes that it does, that will be the time for us to reconsider what we do."

I hope we continue to convey the message every day to associates and partners in a variety of ways that the practice of law is and must always be, first and foremost, a profession.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer