Public Virtue Could Mean Private Violation

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Many of the largest law firms strive to be paragons of public virtue in their programs intended to foster social responsibility. Pro bono service is the most obvious example.

Nearly 15 years ago, the American Bar Association and the Pro Bono Institute launched the "Law Firm Pro Bono Challenge" for firms with more than 50 lawyers to make an institutional, rather than an individual, pro bono commitment. It offers a progressive and ambitious standard: a target of either 3 or 5 percent of each firm's total billable hours, in addition to the hours-per-attorney standard commonly used in articulating pro bono goals. (While firms do have the option to select an alternative goal of 60 or 100 hours per attorney, virtually all signatory firms have elected to use the preferred percentage goals.)

Sustainability is the latest pro bono element, as green has become good for a number of law firms. For example, Latham & Watkins, the largest firm in my home city of Los Angeles and third largest in the country, touts its Sustainable Measures and Recycling Tactics initiative, or SMART: a "global sustainability policy" the firm says is aimed at "reducing our impact on the environment, conserving natural resources and managing our firm in a sustainable manner."

Similarly, law firms must observe the legal requirements to operate a workplace free from discrimination by ensuring that only an individual's skills, experience and knowledge are factors in making human resource decisions. Virtually all large law firms prominently feature their diversity commitment and equal hiring practices on their websites.

Such public virtue is laudable, but the real challenge comes with putting it into private practice within the firm itself. Thus, profitability is key to successful pro bono performance in any firm of any size — without sufficient billings to support pro bono non-billable time, the commitment to serving the public will be tenuous at best.

Similarly, the financial sacrifices to participate in the greening movement mean that many firms will make only a philosophical commitment to it until they can see a return on investment, whether significant or modest. And because firms by their traditional nature as partnerships are often highly subjective and personalized environments, personnel policies risk pressures and expectations that are more arbitrary than the law allows.

This last point is reflected by a recent story in which a female partner at a major law firm (which has received awards for diversity) has claimed that the firm discriminates against women. She asserted that women partners in the firm receive less compensation than men because the firm's partner distribution system is based on origination, not just billable work, as is the case in many firms.

With women still less than 20 percent of the partnership at most large firms, origination remains a mostly male activity in which old relationships are the basis for current compensation, allowing little or no access to women, to younger lawyers and to other diverse groups in the firm.

Compensation may be a private law-firm matter. However, like pro bono service, sustainability and diversity, firms unwilling to look anew at their compensation culture in light of public policy norms will continue to face challenges from within and social pressures from without.

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