The Unhappiest Lawyers

May 16th, 2015 / By Deborah J. Merritt

The New York Times recently covered an excellent study by Lawrence Krieger and Ken Sheldon. I wrote about the study, which analyzes lawyer happiness, when it first appeared.

The research finds that “service” lawyers, who work as public defenders, government lawyers, legal aid attorneys, and in-house counsel to nonprofits, are happier than “prestige” lawyers (those who work primarily for firms with 100 or more lawyers). Based on decades of contact with law graduates, that result does not surprise me.

The article and media coverage, however, downplay a finding that is much more important to our graduates, the profession, and potential clients: The unhappiest lawyers are not the prestige ones. Instead, that dubious honor falls to the “other” lawyers, those who work in smaller law firms “in popular practice areas such as general practice, family law, private criminal defense, and many others not typically associated with either very high earnings or primary public service.” (P. 589)

Unfortunately, those “other” lawyers made up more than half (51.7%) of the sample surveyed by Krieger and Sheldon. What do we do about a profession in which some lawyers earn high income in “prestige” positions, while others secure well-being (and early loan forgiveness) in “service” jobs, but the majority obtain neither? How do we fulfill our responsibility to serve all of society’s legal needs when the greatest number of unmet needs fall in that “other” segment?

The Lawyer Drain

Krieger and Sheldon’s research helps explain why so many law graduates leave practice, while so many clients remain unserved. Our students are eager to secure prestige or service jobs. Some want just one of the two; others would be happy with either one. But those jobs won’t accommodate all of our graduates, either short-term or long-term. For those who enter practice, many will have to take jobs in small firms that serve individual clients.

Those graduates perceive the low prestige of these jobs, together with their modest pay and apparent lack of well being. Rather than accept work in these disfavored positions, some choose to leave law practice. They may find financial and personal rewards in those other positions, but they are not making full use of their legal education and law license. Some report ongoing regret that they were not able to fulfill their dream of law practice. Clients, meanwhile, continue to suffer lack of representation.

Underlying Causes

Is there a way to address this situation? Or is dissatisfaction with “other” law practice inevitable? That type of practice certainly offers plenty of frustrations: difficult clients, tedious courtroom waits, disappointing losses, and uncollected bills. But many of those factors mark “service” jobs as well. The work of a legal aid lawyer is not that different from the tasks of a family lawyer serving low- and mid-income clients. Nor does a public defender’s work differ much from that of a paid defense lawyer representing modest-income clients.

The primary difference between these categories lies in office management and bill collection. Those are tedious matters for many lawyers, but it doesn’t seem inevitable that they compromise well being. The “other” practice areas, meanwhile, offer some compensations that neither prestige nor service jobs as readily provide. Small-firm lawyers often have more autonomy than these other categories of lawyers. They may also have a greater chance of affecting their client’s lives positively than lawyers who work with the lowest income clients.

Part of the problem, I think, is that we have defined our professional categories to make this “other” work undesirable. Personal injury lawyers who represent the middle class are “ambulance chasers” rather than lawyers who serve mid-income clients who face devastating injuries, medical bills, and loss of earnings. Divorce lawyers working with the same clients are “sleazy” attorneys preying off clients’ emotional misfortune. And paid criminal defense lawyers are “hired guns” who make their living putting criminals back on the street.

Doing the same work for a government or nonprofit paycheck is honorable. Attempting to serve the same clients in private practice is not.

Can We Fix This?

Legal educators are in a special position to address this problem. We serve as the gateway to the profession, introducing students to both the law and their potential careers. We also provide three years of intense acculturation for students. They form their professional attitudes, as well as prejudices and presumptions, during their time with us.

Most law schools, I suspect, implicitly teach students that “other” law practice is exactly that–something you turn to when you can’t find a job in the prestige or service worlds. Very few full-time faculty worked in these “other” jobs, and our curriculum does not feature them. We teach Torts, Criminal Law, and Family Law, but these courses focus on the high-minded appellate development of principles, rather than the everyday work of private practitioners. Attempting to teach these courses from a more practice-oriented perspective can elicit cries of “proselytization” from students. They don’t want to become personal injury lawyers or identify with the victims in these cases.

Some recent changes in legal education may start to redress this imbalance. More law schools are teaching practice management courses, which are essential for new lawyers practicing in “other” areas and signal the school’s support of these careers. Post-graduate incubators serve a similar purpose: In addition to providing essential skills, they demonstrate the school’s recognition of these practice areas. Students planning to practice “other” law have some established pathways to follow.

Doing More

We need, however, to do much more than this. Doctors take pride in working in a service profession, no matter how much money they make from their practice. Law is also a service profession, but we have lost much of that aura. Recapturing that mission is essential, not only to guide our graduates into rewarding careers but to serve the clients who need us.

We talk about service in law school, but we rarely model it. I’m not talking here about pro bono efforts by faculty or students; those, again, suggest that the only true service is done for free. Instead, we need to recognize that the services lawyers provide are individualized ones to clients. Our constant focus on appellate decisionmaking tells students that the highest calling for lawyers is changing the law through appellate argument. Medical schools, in contrast, teach students from the first year how to serve by treating individual patients.

Law schools cannot give all of their graduates the high salaries that prestige lawyers command. Nor can we make every graduate happy; well being derives from a mixture of factors, including genetic ones. We can, however, try to recapture the honor that attaches to solving the ordinary problems of ordinary people. Doing that requires much more than simply adding experiential classes to law school. We need to rethink the way we teach the first year, the manner in which we structure our curriculum, and the implicit messages we send throughout law school.

Equally important, we need to make law school affordable for the students who will become “other” lawyers. These are the students who will not reap BigLaw salaries, nor will they qualify for public interest loan forgiveness. Their firms will not benefit from the government grants or private insurance that sustain most medical practices. If we want to recapture the service ideals of the legal profession, we need to make service affordable and honorable for all of the graduates who do this work.

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