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Leaving the Law

[Published in Toronto Life magazine in 2006, and nominated for a National Magazine Award.]

Until an autumn day in 1998, I was headed along a well-travelled path, but, on that day, I was diverted. Three years out of the University of Toronto’s storied law faculty, I was employed as a junior associate at a downtown law firm—a civil litigation boutique with an odd mixture of specialties ranging from defamation to maritime law, from insurance to aviation. I was in my office, on the 21st floor of a ziggurat-like tower at Yonge and Queen, sending out e-mails to my colleagues soliciting work. I had just finished assisting a partner in a constitutional case at the Ontario Court of Appeal, and for the first time since joining the firm, I didn’t have much on my plate.

The phone rang. Would I come to the interior conference room, the one with the ugly pastels? There, looking sheepish, were two of my favourite partners: a courtly aviation specialist, a Louisiana native who always wore a fedora outside; and one of the firm’s few senior female lawyers, a soft-spoken Scottish-Canadian. At once, I knew what was coming, why I had no work. I was about to be fired.

They sat me down and said that after a strong start at the firm, I’d apparently lost my drive. I was billing too few hours. I didn’t seem happy. I sometimes didn’t give the impression of wanting to learn. The worst of it was that everything they said was true. I had been miserable for at least a year. I hated beginning my day by finding a nasty e-mail in my inbox (sent at 1:28 a.m.) or a vicious phone message from another lawyer (left at 2:25 a.m.). I despised being on my feet in front of rude, overworked judges. I had such bad performance anxiety that quite often, just prior to a court appearance, I’d excuse myself, go to the washroom and vomit.

The summer before my dismissal, I’d taken a three-month unpaid leave of absence to put on a play—what is known in the trade as a CLM, a career-limiting move. On extremely trying days at the office, I’d think of W. B. Yeats’s dictum, “Too long a sacrifice can make a stone of the heart,” and pray not to turn into the listless drone with “Carpe Diem” as his screen saver. In various moments of deep despair, I had drafted but not sent multiple incendiary resignation letters. Though the shame of being fired was almost unbearable, deep down I was relieved.

The partners offered me an adequate severance package, decent, if tepid, references, and the promise to help me in any way they could. But this job, this phase of my life, was over. So this is how it feels, I thought, staring dully at an ugly abstract painting on the wall. So this, at last, is failure. Firing happened to other people, not to people like me. I excused myself politely and went home.

My friends and family thought I should try for another job in the field. And I’m sure I could have found one. I had decent marks, solid experience, good connections. But I couldn’t stand the idea of interviewing at another firm, trying to convince them that I wanted a job. I didn’t. I wanted out.

And so I shifted from the respectable, besuited profession of law into the relatively disreputable, turtlenecked trade of journalism. Some of my friends were bewildered, others filled with pity. But a few seemed envious.

My feelings about the law are not unique. Many of the lawyers of my generation are unhappy with their working lives. At parties, they tend to admit how they gain their livelihoods reluctantly, usually with quick disclosure of other mitigating facts—a taste for jazz, an interest in architecture. You’d think they were in the porn industry, given how little they talk shop, how ashamed they seem of their day jobs.

Here’s what you won’t read in the glossy law school brochures, what many practising lawyers know, but deny: the practice of law has become a lousy way to make a living; it breaks all but the highest spirits. The profession can no longer lay claim to being a calling; it has become a soul-destroying business. The big downtown Toronto firms, which used to draw some of the country’s best and brightest, continue to draw its brightest, but no longer hold on to its best. The cynics flourish, while the idealists lag, jump ship or, unable to beat the cynics, join their ranks.

At a book launch a couple of years after I was fired, I ran into Bert Bruser, one of the city’s top media lawyers, a Princeton-educated senior partner at the blue-chip firm Blakes. After telling him my story, he shook his head and said, “You’re not alone. So many junior lawyers are leaving the practice. If there were this many doctors leaving the medical profession, there’d be a royal commission set up to look into it.” To my mind, there’s no need for a royal commission. Every­one knows what the problems are, but few will admit them aloud.

The law is in my blood. My ancestors include an attorney general of Upper Canada and a founder of the Law Society whose portrait hangs in Osgoode Hall. My father is a retired corporate lawyer, a Queen’s counsel who practised for over 40 years at a large downtown firm. One of my first memories is of drawing in crayon on my father’s letterhead—“Borden, Elliot, Kelley & Palmer” read the wedding invitation–style script on the thick, creamy bond. Back then the firm had clubby offices on the fourth floor of the old Bank of Canada building on University, the squat, stone edifice across from where the opera house is now.

When I visited my dad’s office as a kid, the thick, dark carpets, the stern likenesses of founding partners on the wall and the ubiquitous walnut panelling all cudgelled me into an unwonted silence. The atmosphere was rarefied, intellectual, no one rushed about—a gentleman, after all, is never in a hurry.

The lawyers of the last generation lived the cliché; they worked and played equally hard. Unlike my peers, they loved telling war stories, vividly recounting the ups and downs of the practice. Some of them—the ones we knew included Supreme Court Justice Ian Binnie, Walkerton and Arar inquiry head Dennis O’Connor—have changed the face of the legal landscape in Canada, mainly through their efforts to give teeth to Pierre Trudeau’s masterwork, the Charter.

In off-hours, my dad’s colleagues were cryptic-crossword doers, streaky bridge players, easy company in good and bad times. After boozy dinner parties at a cottage, they’d light cigars and roll up the carpets to dance. The next morning, they might take to a hammock to read this or that classic, followed by an afternoon playing golf or tennis. In summers, they’d join their law school chums in shooting the rapids of some Northern Ontario river, growing their beards out for a couple of weeks. In the winter, you could often see them schussing down the slopes at Osler Bluff.

And so, I entered law school with high expectations. During my first week, I went to an orientation event for the incoming class of 1994 on one of those nasty boats that trawl the harbour playing endless remixes of “Macarena.” I caught up with a high school friend, Melanie, daughter of the late Supreme Court Justice John Sopinka. I chatted with the school’s then dean, Robert Sharpe (who now sits on the Court of Appeal); we discussed Michael Holroyd’s multi-volume biography of Shaw. Other incoming students on board had studied at Harvard or interned at the World Bank or observed elections in South Africa on behalf of the United Nations. There was much competitive swapping of credentials.

Elsewhere on the boat, a classmate from a small town who had overcome long odds to get where he was gestured across the waters to the city’s glittering skyscrapers. “That’s what it’s all about, isn’t it?” Small Town Boy said earnestly. He was drawn to the profession’s glamour, its promise of power and money, and the possibility of doing good—all this appealed to him. Another incoming classmate, an ex–private schooler who wore an ascot and a tweed jacket, professed no such illusions. When I asked him why he’d chosen to go to law school, Ascot drawled, “A lack of imagination, I suppose.”

I had no idea then whether the profession would live up to the high expectations of the woman with World Bank experience or the guy interested in African elections. Now I know. Downtown law firms are not kind to wits, bon vivants, optimists. In one generation, everything has changed.

My father and his generation built up their comparatively tiny firms (in the 1960s, many had fewer than 30 lawyers) into transnational powerhouses. Now the Toronto office of his firm, renamed Borden, Ladner, Gervais, has relocated to airy quarters spread over nine floors of the Scotia Plaza, and the company as a whole employs more than 700 lawyers.

Gone is the culturally specific, gentleman’s club atmosphere: the offices are decorated in pastels and beiges; cutting-edge modern art coexists uneasily with those same stern portraits of éminences grises; men and women from various ethnic and socio-economic backgrounds speed about among the cubicles; secretaries operate photocopiers as big as the Ritz.

“Big law” has emerged as the generic term for these firms. Sometimes they’re called the Seven Sisters, a moniker popularized by the trade magazine Lexpert (though it’s an odd term since they’re still, by and large, macho institutions). A 2003 article in the magazine ranked the top firms by virtue of their participation in the previous year’s biggest deals and numbered in this septet: Blakes; Davies, Ward, Phillips & Vineberg; Goodmans; McCarthy, Tétrault; Osler, Hoskin & Harcourt; Stikeman, Elliott; and Torys. In the top tier of Toronto-centred firms, most would add Gowling, Lafleur, Henderson, the nation’s second largest firm, and BLG, its third. And then there are the major firms from other Canadian cities that have recently come to town in a big way: Ogilvy, Renault (from Montreal), Bennett, Jones (Calgary) and Davis & Company (Vancouver).

The sheer size of these organizations has changed the experience of practising law in their corridors. McCarthy’s tax department alone takes up almost an entire storey of the TD tower; one of the firm’s partners, the dean of the city’s family law bar, Stephen Grant, has to telephone an old friend for lunch because he works on a different floor. “Otherwise, I’d never see him.”

The bread and butter of these firms is deal-making, getting to “yes.” Litigation plays, at best, a secondary role; corporate lawyers, not litigators, dominate the execu­tive committees. The work is largely the same as it was before, but there is a greater emphasis on intellectual property—pharmaceutical and software company work. And the hours required to succeed downtown have increased. There is little room at big law firms for the five-and-a-half-day, 50-hour-a-week lawyer. The current practitioner must be reachable by BlackBerry any time, day or night, holiday or not, and 50 hours represents a slow workweek.

Being a lawyer in 2007 means being a slave to the billable-hour system. Most downtown firms have actual or de facto billable targets for associates ranging from 1,800 to 2,000 hours per year. Not, seemingly, too high a bar, but usually you have to work three hours to produce two hours of billings. “Not long ago, billable at these levels would have been thought unbearable,” wrote Notre Dame law school associate professor Patrick Schlitz in a much discussed Vanderbilt Law Review article published in 1999. Before the billable-hour system became common, companies and individuals with ongoing legal issues would pay a retainer annually to firms for their counsel. Others without regular legal problems would be billed roughly on the thickness of their files—as good a measure as any of the quantity of work put in.

In most big firms now, partner salaries are linked to the number of hours they and associates assigned to their files log. And thus, partners have a financial incentive to drive their associates to bill long hours. A modest proportion of the profits earned is returned to the young lawyer. In blunt terms, what we’re talking about is a pyramid scheme.

Lawyers divorce, commit suicide (or think about it) and suffer from depression at unusually high rates. The legal profession “is one of the most unhappy and unhealthy on the face of the earth,” Schlitz wrote. Some 15 per cent of lawyers in a Washington-based survey were full-blown alcoholics. Over half the lawyers surveyed in a California poll said if they had to do it over again, they wouldn’t go into law. Forty per cent of North Carolina lawyers would never recommend that their children go into it.

An Ontario lawyers’ helpline was started in 1984. In 1995 it fielded 70 calls; it now responds to 1,400 a year. Counsellors report that drug abuse now equals alcoholism as the top occupational hazard.

The billable-hour system creates an atmosphere where nothing but work matters, making the profession highly unattractive for people who want a life outside the office. One new father I know at a large tier-two firm is defiant about his priorities: “I insist on leaving the office by 5:30 or 6. I want to give my son a bath. I want to read him a story. If there’s one night a week where that doesn’t happen, OK. But if it’s more than that I’m upset. As soon as there’s a conflict, there’s going to be a clear winner: my family.” The result: he skips lunch and works late every night after he’s put his son down. He says a number of his friends are looking for a way out or have already left. “I don’t know a lot of people who enjoy their jobs. I’m not miserable, but that may come. It may be you need to bill 2,400 hours a year, and then I’ll quit.”

“If you want to be a success downtown,” New Father carps, “then go to U of T, take all the corporate law courses, work your ass off, go to Oslers, work your ass off again, and 20 years from now you can look around and say, ‘I have more money than God.’ But let me ask you something: what’s in your photo album?”

Because of the law’s inability to accommodate the needs of family life, first-rate female lawyers have been exiting downtown in droves. One woman I know—a dean’s lister, a natural, who clerked after law school—started at a Seven Sister but jumped off the partnership track several years in and now works as a lawyer at a public agency. The Natural took an extreme pay cut, from around $250,000 to around $100,000, but has never looked back.

Although women have for several years comprised more than half of the incoming law school classes, they’re not penetrating the law’s top levels—at least at the big downtown firms—in the numbers everyone expected. In fact, although overt sexism at the firms has declined, the female dropout rate remains disproportionately high. In 1993, a Canadian Bar Association task force headed by former Supreme Court Justice Bertha Wilson reported that the profession blocked women at every turn, or, that most firms reluctantly hired them, sidelined them from top opportunities and premiere clients, and largely failed to accommodate the needs of women with children. As a result, females were 50 per cent more likely to drop out of the race for professional eminence than men. So acute is the problem that another task force was recently struck to address the women who say sayonara to all that.

The Natural could tell this latest task force’s members a thing or two. She managed to hit her billable-hour targets for a couple of busy years, docketing well beyond the expected 1,800 hours. But then her hours slipped slightly, and a firm representative recommended she beef them up. She was outraged. “I asked her, ‘Are you saying it’s a target or a minimum?’ After that, if I gave them one more hour than the target in a year, I felt like I’d failed.” She puts it bluntly: “If you make loads of money for the partners, they don’t care who you are. In fact, it makes them feel good to see you at social functions if you’re ‘different’—if they’re getting their money’s worth out of you. They’ll put you in the marketing brochures; just make sure you never stop earning.” Her sense of having been exploited is palpable—and common.

The esprit de corps once compensated for the personal sacrifices, but the days of the scotch-fuelled debrief at the end of the week have passed. “I worked with hundreds of lawyers for five years, and I made exactly three friends,” says the Natural, thrusting three fingers feistily in the air.

Young practitioners come in, do their work and leave. Instead of trading war stories at the University Club, the rising crew de-stresses (and isolates) itself with the aid of iPods and treadmills at GoodLife. With whatever spare time they have, they’re more likely to be reading the biz lit they can discuss with their clients (Good to Great) than, say, The Meditations of Marcus Aurelius. Once, law firms advertised the scholarly attainments of their associates and partners, that such-and-such had been a gold medallist at Osgoode, or a silver at U of T. Now it’s not relevant; the question is, Can you turn on the burners for the dura­tion of this deal? And the next, and the one after that.

The billable-hour system has resulted in a total deterioration of civil behaviour. A friend told me that at a recent discovery, one lawyer gave another the finger and addressed opposing counsel as “asshole.” In another now legendary discovery, a barrister tossed coffee onto his opponent’s head. The custom of addressing another lawyer as “my friend”—as in “my friend submits X, while I submit Y”—has come to seem increasingly quaint. A senior civil litigator in the city, David Stockwood, perhaps the quintessential gentleman lawyer, carps, “Quite often, you have a pleasant talk with a lawyer on the phone and then you get a five-page letter dripping with vitriol.” So acute has the problem become that the Advocates’ Society has put together a civility code for practitioners.

Mentoring is another casualty of the high workloads. My father had a few lifelong mentors at his firm. Now firms have institutionalized mentoring, assigning each new hire a more experienced lawyer to give them advice. But for many, the system doesn’t work. The Natural told me about how little contact she had with her firm-assigned mentor: “I don’t blame her. She had her family to worry about, her own work and keeping in with the other partners. I came low on her list, and that’s how it had to be. She was just keeping her head above water herself.”

Stockwood sums up the dissatisfaction he sees among many junior practitioners: “The bottom line is you’ve got [young] lawyers who are prepared to work very hard as long as they feel that they are advancing their careers. But if they feel like drones or battery hens, then their morale is very poor no matter how much you pay them.”

Money is the big reason that the applications continue to flood law schools and graduates still pour into the profession. First-year associates at major downtown firms customarily pull in more than $90,000, senior associates over $200,000, junior partners $300,000 and mid-level partners (in their prime producing years) between $400,000 and $700,000. Many of the top lawyers on the street are now taking home over $1 million a year.

Ascot, the preppy kid I knew in law school, now represents corporate management in employment and labour negotiations. Guys like him get truly animated not about their jobs but about the opportunities they’re giving their kids (the privileged lifestyle and private schools) or about their vacations (if they have no kids). For many lawyers who remain in the profession, there’s the intrinsic satisfaction of hurdle leaping. At each point in the law steeplechase, there are obstacles that few can surmount. Getting into law school weeds many out; landing good summer jobs, an articling position, a berth as an associate, a junior partnership, a senior partnership, a corner office—gaining these plums delights the competitor. This, if I’m honest, is what still makes me gnash my teeth; I hated the game, yes, but I wanted—part of me still wants—to win it.

And the competition is fierce. These days, the system is set up so that it’s almost impossible to get to the top of the pyramid. Warren Bongard, vice-president of the legal headhunting firm ZSA, estimates that only one in 10 associates who start with a downtown firm will make partner, as opposed to roughly one in three back in the day. Where once partnership was offered (or not) after six years in the practice, now it’s more likely to take seven to nine years of slogging. “Workwise,” says Bongard, “firms get more leverage from their associates by delaying the partnership decision.”

So those who do make it to the top have probably earned it. There are fewer sons of (and daughters of) coasting through on daddy’s coattails than in my father’s generation. Jay Swartz, a senior lawyer at Davies, Ward, Phillips & Vineberg, comments: “It used to be said of McCarthy’s that they hired the sons of big clients and judges. And I do mean sons. Now that’s no longer the case—really anywhere on Bay Street.” His firm Davies’ reputation for requiring hard work, not lineage, of its associates is reflected in its politically incorrect nickname, Slavies.

Ascot, a father of two, remains as genially cynical as he was in school—nothing that’s come his way has surprised him. “So many people thought they’d finish school and walk into the profession through the mist that comes out of a champagne bottle. Instead it’s something of a cold shower.”

Small Town Boy from my law school class worked at a downtown boutique firm for six years. “I was not at all happy there. If I hadn’t found something else to do, I would have got out of law altogether within a year.” The towers did not deliver on their mute promise. His complaints are similar to mine: the lack of collegiality, the hours. And so he left to become an in-house counsel at a company in the 905. “It’s a management job, so I don’t do just law. I’ll deal with the legal aspects of contracts, human resources, advertising. We farm out most of our litigation, so I also manage external counsel.” At first he found working in the 905 isolating, but he now has time for himself, time for his family, time for a life.

Indeed, exiles from Bay Street generally have work that is less abstract; they feel they’re able to use the powerful tools afforded by the law to help their clients with real-life problems. The Natural, from her perch at a public agency in midtown, enjoys occasionally kicking some Bay Street ass—going up against, and sometimes beating, big-firm lawyers in court.

I recently reconnected with another former law school classmate who spent the last decade sweating at corporate law to become a partner at a top downtown firm. He had been a firebrand in school; now he’s a cautious purveyor of verbal pabulum. He loves his “team”; he’s seldom come across any real rogues; his fellow practitioners are generally quite nice. He makes over $300,000, but after I told him about my career change, he confessed to me in a plush boardroom high up in First Canadian Place, “We envy those of you who got out.”

My generation arrived on the scene, in Neil Young’s memorable phrase, after the gold rush, after all the ore had been extracted from the ground. Despite all the hard work, they simply aren’t finding that magic mix—the metaphorical gold. I admire my contemporaries who have stuck it out; not only are they working insanely hard, but they have to try not to lose heart in a profession that has lost its.

I’m happier away from law. It was an expensive decision, but, for me, the right one. If anything, I miss how clear the milestones were: as a lawyer, you always knew where you stood, whereas for a journalist there are fewer clear markers. Still, despite the lack of structure, the relative insecurity and unpredictability of most non-professional jobs, at least you get to write your own script. Sure, it’s unclear, and things change radically from one day to the next. But that’s life, real life.