Sunday, October 09, 2005
The relevance to her SCOTUS nomination of Miers' credentials as a large law firm's managing partner
In prior posts, and moreso in comments to them, I've touched on (and sometimes debated) the importance of Harriet Miers' experience as managing partner of Locke Purnell and then, post-merger, as co-managing partner of Locke Liddell & Sapp. This post collects my thinking on that into one place.
Being chosen as a large law firm's managing partner, and being successful in that role once chosen, reflects certain useful management skills, as the title implies. More specifically, running a law firm is a lot like herding cats. And not housecats, but lions — a "pride" of lions, I believe they call it. Hungry, dangerous, big cats with bigger egos and sharp claws and teeth, plus the ability, and the incentive when they perceive themselves slighted, to drag off into another part of the jungle their own recent kills along with their protegés and subordinates. Dealing with partner-level lawyers requires tact, creativity, flexibility, judgment, listening and communication skills, the learned or intuitive ability to broker compromises, and finally (but not least importantly) a backbone of steel and the ability to display and occasionally use one's own teeth and claws. The "people skills" expected of a managing partner, while perhaps particularly important for a Chief Justice in the context of the Supreme Court, are not unimportant for other Justices. The Chief Justice, simply put, has but one vote, and he is not always himself in the majority.
Beyond "people skills," though, having managed a large law firm vouchsafes that someone has the important perspectives and experiences that come from running a business. Being chosen by one's partners for this role reflects in part their judgment as to one's business acumen and common sense, independent from one's expertise as a legal scholar-practitioner. In many ways, running a large institutional law firm, with offices in several cities and a large nonlawyer support staff, can be like running a medium-sized business corporation. It's not General Electric, but neither is it a mom-and-pop drugstore. It takes people skills to split the pie among partners; but it takes business skills to ensure that there's a pie to split, and to grow and expand it. That Ms. Miers may bring to the Court the instincts and perspectives from "middle America" and from the world of commerce generally is, I think, a very encouraging thing.
But finally, and in my mind perhaps most significantly, there is indeed a strong positive correlation between being chosen as a managing partner and being professionally respected by one's partners, peers at the bar and bench, clients, and community. Someone suggested earlier in my comments that it's common for managing partners to be chosen based solely on their business ability. That's just nonsense. Business ability is useful, but large law firms can and do hire highly sophisticated, valued, and well-trained and -paid professional managers — accountants, marketers, recruiters, human resource specialists, information technologists and librarians, premises managers, etc. — who are nonlawyers. Yet large institutional law firms are uniformly run by their lawyers, and their lawyers almost inevitably pick someone to lead them who has substantial intellectual power and practice accomplishments along with the other essential talents.
That has been the case at every large law firm at which I've practiced. For example, Bill Harvin and Bill Barnett, the two successive managing partners during the years I was at Baker Botts, were among the most highly regarded adversary practice lawyers at that very fine firm; they were beloved, respected, and a little bit feared. The notion that Baker Botts' lawyers would choose to be led by a legal mediocrity, regardless of his or her business talents, would simply be too funny for words to anyone remotely familiar with that firm. Likewise, Weil Gotshal's managing partner when I was there, Ira Millstein, was a nationally famous business adviser, confidante of CEOs, and trouble-shooter to whom Fortune-100 companies' boards of directors turned when in trouble — a respected antitrust lawyer who also became respected for his legal and practical judgments on matters entirely unrelated to antitrust as well.
Managing partners, to be successful, become not only the chief executives responsible for making decisions within their law firms, but those firms' spokesmen to their clients, competitors, and communities. They are entrusted by their partners not just with protecting their firms' reputations, which may date back decades or even more than a century, but also with guiding their firms' futures. Anyone who thinks this is a trivial credential or accomplishment doesn't understand much about law, lawyers, and law firms.
Other weblog posts, if any, whose authors have linked to The relevance to her SCOTUS nomination of Miers' credentials as a large law firm's managing partner and sent a trackback ping are listed here:
» More thoughts on the Harriet Miers kerfuffle from Small Town Veteran
Tracked on Oct 10, 2005 3:15:33 AM
» More thoughts on the Harriet Miers kerfuffle from Small Town Veteran
Tracked on Oct 10, 2005 3:28:20 AM
» Miers: A Loner Lacking in People Skills from Patterico's Pontifications
Tracked on Oct 10, 2005 4:07:25 PM
» Malkin In The Middle from Don Surber
Tracked on Oct 12, 2005 1:29:40 AM
» The Big Bloggers from Kerfuffles
Tracked on Oct 12, 2005 9:01:07 AM
(1) Ironman made the following comment | Oct 9, 2005 6:54:40 PM | Permalink
I presume you blogged your way past the Astros' marathon win over the Braves
Beyond "business ability" might you say "sensitivity to business"--i.e. an understanding of what is necessary to run a large business in the U.S.? Wouldn't tort reform be an expression of this?
Thanks for all this, Beldar. You can't be sleeping much.
Beldar, I'm curious about your take on this. My gut reaction is that this is the kind of thing tax lawyers are supposed to do...and if we want a tax code that isn't gameable, we need to look at Congress, not the lawyers. But it looks like the kind of thing that lends itself to bad sound bites. Found via Ann Althouse
Mr. Hu, I absolutely lack the substantive knowledge of tax law that would be required to even begin to evaluate this very deeply. Two things jump out at me: Ernst & Young is an awfully well regarded firm. And Ms. Miers' name isn't personally linked, nor would this have likely been within her area of practice, in which event its relevance, if any, for purposes of her SCOTUS nomination would seem to me to be limited to: Were these opinions, if indeed improper at all, so obviously improper that she's sufficiently culpable for not detecting and remedying them so that her ethics or integrity or supervisory ability become subject to meaningful doubt as a result? That strikes me as unlikely, but I just can't do more than guess.
(6) David Walser made the following comment | Oct 9, 2005 8:08:38 PM | Permalink
Jim - I know you asked the question of Beldar, but please allow me to chime in. Full disclosure, I used to work at E&Y in Dallas (before the days of the contingent deferred swap transaction). I am very familiar with the entire "tax shelter" business.
With that background, what do I think we should take from Ms. Mier's firm's involvement with writing tax opinions? Not very much. First, she is not a tax expert and would not have been directly involved in the research into the proper tax treatment for the proposed transaction. Second, while she most likely was involved in deciding whether the firm would participate, the legal landscape has change markedly from what it was when the decision to participate was made. From the perspective of a tax professional, our current situation is worlds apart from what it was like when these deals were being done. What E&Y and Ms. Miers' firm were doing WAS THE NORM in those days. It's unfair to change the rules and to then retroactively apply the rules in making moral judgments about people's actions -- at least that's my take.
Most importantly, all you've seen so far is the government's take on these tax shelters. While they are described in the press as being the devil's own work and not having any support in the law, the government has yet to win a single case. That is, it may well be that E&Y and Ms. Mires' firm were right: their clients will prevail on the merits. Note that the Congress and the Service have changed the tax code and the regulations in an attempt to shut down some of these "abuses". If, as the press releases claim, there was no support in the law for the positions taken by taxpayers, why was there a need to change the law?
Thanks (and please call me Jim).
(8) Ironman made the following comment | Oct 9, 2005 11:07:26 PM | Permalink
are we to presume that transactionally setting up a tax shelter is more morally questionable than criminal defense law?
It's the compromising part that bothers me. I'm not a fan of gazillions of concurrences, but I'm also not a fan of splitting the baby -- and having more Justices with clear views of the law like Scalia, rather than a gazillion balancing tests, would eliminate the concurrences as surely as having someone who likes to compromise all the time.
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