The Talent

December 3, 2010 3:00 PM

Explaining Bad Behavior

Posted by Ed Shanahan

By Steven Harper

I've never met Steven Pesner, who lit up the legal blogosphere with his now infamous e-mail to Akin Gump's New York office litigation billers and their secretaries.

Some say he's typical of big-law partners; others argue hopefully that he is an exception. Someone else can tackle that survey. I'm interested in what the episode reveals about the prevailing large-firm business model that put him in a position to disseminate the words that now define him.

First, his fundamental point applies to almost all large firms: Get your time sheets in because the billable hour remains big law's cornerstone. People working for Pesner undoubtedly log lots of billables; they lead to revenue--an essential prerequisite to his internal power. That's not unique.

Second, the model has many problems, only one of which he targets: Tardy time submission. Some attorneys wait a week--or even a month--before trying to "reconstruct" their billable activities. That allows them to believe that doing their best to remember earlier tasks isn't lying. Insofar as Pesner sought to deter creative writing at week's or month's end, he was protecting clients and his firm. Of course, that doesn't justify his rhetoric. Nothing can. But his topic reveals one of many flaws infecting the billable-hour regime.

Third, economic self-interest looms large. His message went exclusively to all New York litigation personnel--a point commentators have ignored. Pesner's departmental billings may well frame a larger internal debate: His NY litigation group's near-term economic standing. He might have been preparing to defend his memo's recipients against annual intra- and interoffice warfare with corporate, restructuring, and transactional group leaders. Most large-firm equity partners eat what they kill, along with what they successfully claim to have killed. In many firms, allocating profits often starts geographically by office practice group before proceeding to rainmakers, who then decide the fate of individuals within each group.

Fourth, Pesner's valid points morphed into a tirade that reveals pervasive equity partner hubris, especially among big-law managers: He believes his own press releases.

"9. For those of you who think you are exempt from doing time sheets on a daily basis, I'd suggest that you reevaluate your importance and get ready to prove that (a) you are busier than I am on legal work, (b) you are busier than I am on client development work, (c) you are busier than I am on firm work and (d) [Redacted] and I do not have better things to do with our time than beg you to be responsible."

The word "I" appears five times. That's how some senior partners orient their world--around themselves. Few, if any, others compare favorably to their own idealized self-images. Their constant refrain is "today's young people just don't want to work as hard as I did." But as associates, none had the challenge of a BlackBerry keeping them on-call 24/7. In fact, they didn't even have annual minimum billable hours requirements. Their hypocrisy is stunning.

Finally, he acknowledges the life-or-death power that all senior partners wield over subordinates' careers:

"10. Candidly, I'd put every future material violator's name in a hat, randomly pick out a name, and publicly fire the person on the spot--to demonstrate that time sheet compliance is serious business. And incidentally, it is my understanding that the job market is not so good right now in case you did not know."

The immediate issue was time submissions, but the underlying attitude infects working relationships throughout big law. Pesner was unique in his candor, but not in his views. Few dare to challenge such a partner in a position to make or break careers. Pesner's threatening finale leaves no doubt in that respect:

"11. Also, please remember that I have a long and excellent memory.

If you have any questions, think long and hard before asking them--this simply is not very complicated."

Sometimes a few words from one man are worth a thousand pictures of what too many others in his profession have become.


Steven J. Harper is an adjunct professor at Northwestern University. He recently retired as a partner at Kirkland & Ellis, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at A version of the column above was first published on The Belly of the Beast.

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I'm a GC at a large Boston corporation and I would never even consider engaging someone who relates to their employees in this manner.

This guy's comments to not reflect the attitudes of any of the partners that I know at my firm or others. Do not paint the entire field of large law firm partners with his dirty brush. Many large law firm partners (even rainmakers) are considerate and great mentors. These types of columns often seem like pandering to the crowd.

Maybe these comments went a little far, but I have a lot of sympathy for Mr. Pesner. Every single month I have to remind people who otherwise appear to be adults that they must enter time in order for us to send out bills. Why does this have to be a constant struggle? If you want a job where you don't have to keep track of time, don't work in a law firm.

Sadly time keeping is still the king of law. That's why we created Chrometa - to help lawyers track their billables and create time sheets in no time.

The fact that law firms bill their time should not be looked at as a dirty practice. When companies make millions off a deal, the law bill is the small part. The culture of many associates today, even after the crash is what can you do for me. They don't get it. They know how to text and keep their chat boxes open all day, but billing time is a hardship. Would they rather punch in a time clock. I think the author needs to find a more balanced way of telling a story.

When I was an Associate at a mid-sized firm, I received these sorts of cheerful e-mails every month.

Question: If you know who the offenders are, WHY NOT JUST WRITE OR SPEAK TO THEM??! I did my timesheets diligently and it was VERY demoralizing to get an abbrasive and threatening email every month on the subject. Mr. Pesner clearly sent this email to ALL associates and secretaries because he starts off by thanking those who enter time diligently.

I am now in-house, thank God.

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