Help Wanted

FORUM COLUMN

Not a week goes by that I do not get a call from a former student who has been laid off by his or her law firm. I have received such calls from first-year associates who graduated last spring, from second-year associates, from more senior associates in the fifth, sixth and seventh years of practice. Senior lawyers, too, are being laid off.

On Tuesday, April 28, the Atlanta law firm of Kilpatrick Stockton announced that it was laying off 24 lawyers. On Thursday, Mark I. Levy, an attorney in the firm's District of Columbia office who was laid off, committed suicide. Levy, 59, had been a deputy assistant attorney general in the Clinton administration and had argued 16 cases in the Supreme Court.

The blog Law Shucks reports that as of April 20, 2009, 4,316 lawyers and 6,343 staff in law firms had been laid off since Jan. 1, 2008.

Yet, my sense is that our profession is largely turning its back on these individuals. The response of lawyers to those who have lost their jobs is generally sympathy, relief at being spared and fear of being next.

This, of course, does not include those about to graduate who have been told not to report to work for many months. The major national law firm Mayer Brown has postponed the start date for its new class until Jan. 19. Katten Muchin Rosenman has sets its start date as Feb. 1. These are two examples of what many firms are doing.

On an ethical level, there are important unexplored considerations. What is the ethical duty of the bar, and for that matter law schools, to help during this unprecedented impact on the legal profession? What are the likely ethical implications for the practice of law?

As to the former, the profession has the duty to provide affirmative assistance to those who have lost their jobs. This can be defended, in part, on what it means to be a profession. The practice of law is not left to individuals to be on their own however they choose. They are required to be part of a collective, an organized bar, which also provides for its members. It is common for the organized bar to provide services ranging from counseling to insurance benefits.

There is also a moral duty to help our colleagues. The reality is that but for circumstances, any lawyer could face the consequences of the economic downturn and many likely still will. When our colleagues suffer, we should and must help.

Yet, I have heard little about actual assistance from the organized bar. The American Bar Association did a survey of state and local bar associations. It found that 72 percent have due waivers and payment plans for attorneys who are facing economic hardship. Thirty-four percent are offering career counseling and 24 percent are offering personal counseling. Some are offering Internet seminars on interviewing skills and lunchtime strategy sessions for out-of-work lawyers.

A few law schools have acted. Northwestern University School of Law, for example, has said that students whose jobs have been deferred can postpone repaying their loans until they are employed. The school also said that it will provide volunteer opportunities at their clinics and provide information about other opportunities to its graduates. The University of Texas Law School has announced that it will provide a $6,000 stipend to do pro bono work to students who are graduating but whose jobs have been deferred.

So much more needs to be done. The bar needs to provide a fund to assist lawyers who have lost their jobs. Bar dues should be suspended everywhere for those who have been laid off. For those with jobs, bar dues should be increased to provide a fund to provide financial assistance to lawyers who have lost their jobs. The amount of the increase can be done as a progressive tax based on a lawyer's income. Requirements, such as pro bono work, can be tied to receipt of the money.

Law schools, too, need to do much more. Law schools need to explore the possibility of suspending loan payments by students who have been laid off. Law schools need to organize their alumni to provide assistance to those who have lost their jobs. Career service offices in law schools must make helping laid off graduates a top priority.

At the same time, the bar needs to be cognizant of the likely ethical consequences of the economic downturn. I have heard some speculate that this will have a positive effect on lawyers' ethics, perhaps leading to desirable changes in the way that lawyers bill. I am skeptical and see likely adverse consequences.

The pressure on lawyers to please clients is increased exponentially in the current economic climate. The reality is that attorneys and law firms need desperately to keep their clients. My sense, after over 30 years as a lawyer, is that a very large percentage of serious ethical violations come when lawyers go too far in their effort to please the client or get the results the client wants.

This is always a danger. My late colleague Charlie Whitebread used to admonish his students, "When the big green door slams shut, remember which side you want to be on." I never have heard a better way of explaining the need to not make your client's problems your own. But economic pressures make this much more difficult.

At the same time, the pressure mounts on lawyers to work ever harder, ever longer hours. The associate or even the partner wants to show those in charge that he or she should not be the one laid off. One way to do this is to find a way to bill even more hours. As I talk to former students who are unhappy in the practice of law, it is often the pressure to bill enormous number of hours that is at the root of their dissatisfaction. This pressure and even the pressure to engage in false billing has increased greatly.

There is no easy solution to these ethical pressures. But they will not go away by being ignored. My point is that the economic downturn has enormous ethical implications. Our profession must face them.

The former chief judge of the New York Court of Appeals, Judith Kaye, asked me in February what our profession can do to help the many lawyers who are out of work. I said honestly that I did not know, but her question has haunted me ever since, and every time I get another call from a student who has lost his or her job. It is the key question for our profession at this time.

Erwin Chemerisnky is dean and distinguished professor of law at UC Irvine School of Law.

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