Finding the Lawyer Identity

Volume 4 • Issue 4 • May 2018
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Drifting Law Students

Public interest caught in the law firm pipeline

By John Bliss

You often hear it as a sort of gallows humor among lawyers: “I came to law school to save the world, and then I sold out to make money.” Indeed, survey researchers have consistently shown that many incoming law students express preferences for nonprofit and government jobs but then experience a “public-interest drift” during law school, whereby they instead decide to pursue positions in private law firms. This phenomenon has increasingly presented an empirical puzzle. While we may generally assume that students are simply making financially motivated decisions, quantitative studies have suggested that debt and salary do not substantially explain this drift. Some researchers have instead pointed to the law school socialization process where lessons in amoral, apolitical, and unemotional legal reasoning may steer students away from public-interest career ambitions. Other commentators portray students becoming more aware during law school of the prestige hierarchies of the bar and the constraints of the public-interest job market. Meanwhile this entire inquiry into public-interest drift has been challenged by skeptics who speculate that incoming law students offer deceptive responses to surveys, exaggerating their public-interest career commitments due to a social desirability bias (a desire to be seen as a do-gooder).

Absent from this discourse, however, is a systematic qualitative look at the public-interest drift process examining the stories behind multiple-choice surveys on students’ evolving career orientations. This is what I have aimed to contribute with my recent five-year study drawing on interviews and other methods with students in an elite law school. In this article, I summarize key findings, which can be explored in greater detail in my recent law review and peer-reviewed publications. In short, I conclude that these students struggle most with a lack of preparation for the job market. I find little evidence that they are fabricating their initial public-interest career orientations. Indeed, many of these students continue to identify strongly as a “public-interest lawyer”—a label they generally define in sharp opposition to the “corporate” path—even as they decide to apply to large law firms at the end of the first-year summer. These students often emerge from this process with troubling accounts of personal and civic disinvestment as they transition into their roles as law firm attorneys. I conclude the article with policy recommendations focusing on preparing students to broker the job market.

Methods

This article summarizes findings from a multimethod longitudinal case study of student experiences. The data consists of 153 student interviews, ethnographic observations in law firm hiring programs and other law school settings, and an “identity mapping” method, which provides visual snapshots of the emerging professional self over time. These triangulated methods aim to reveal processes of decision-making and professional-identity formation. In this article, I focus on the 18 participants (of the total 66 participants) who in 1L stated a preference for a public-interest sector job as their first postgraduation position but in 2L had taken internships in large firms and planned to start their career in that sector.

The existing literature on public-interest drift has focused on high-ranking law schools, although surveys have shown a significant movement away from public-interest job preferences among students at other schools as well. To interrogate the dominant accounts of public-interest drift from a different methodological perspective, this study focuses on an elite law school that has a strong liberal and public-interest reputation and may tend to attract students with public-interest job preferences. While this site is not representative of all law schools, it is a site where we may expect the drift effect to be particularly stark, as students have ready access to prestigious positions in large law firms. Most participants in the present study took postgraduation jobs in large elite firms ranked in the AmLaw 100 or AmLaw 200. Throughout this article, these firms are labeled “large firms,” or occasionally “corporate law,” when discussing students’ views.

This analysis includes few observations about race, class, gender, and age. These variables can certainly interact with students’ experiences of civic commitments, knowledge of legal career paths, law school peer dynamics, financial considerations, consonance with lawyer identity, and attitudes toward narratives of “selling out.” Further research is needed to disaggregate the study of students’ career orientations and decision-making processes along these identity coordinates with larger or more targeted samples.

Summary of findings

The findings summarized below are presented in chronological order through four points on the law school timeline: (1) initial career preferences upon entrance to law school, (2) the decision to apply to large firms at the end of the 1L summer, (3) on-campus job interviews at the beginning of 2L, and (4) the spring of 2L as students reflect on their upcoming positions in large firms.

1. Initial career preferences

In our research interviews, first-year law students who expressed a preference for working in the public-interest sector were generally somewhat vague about what specific jobs they might pursue. However, among their peers in the public-interest subculture of the law school, they presented certainty and specificity in their plans for a public-interest law career. Furthermore, as 1Ls, these students often defined themselves as public-interest lawyers in opposition to the students who came to law school “to get rich.” As one student summarized, the “corporate” students are “the people I am going to actually be fighting against. They could literally be on the other side of the courtroom.”

In these accounts, the first-year public-interest subculture was described as highly supportive of public-interest career commitment. But some of these students also explained that within this subculture they had few opportunities to discuss doubts about working in public-interest law. In particular, they struggled with feeling that it was “taboo” to discuss the large-firm options:

I tell [public-interest-oriented friends] I’m looking at non-profits, which is true. I am. But I’m also looking at the law firm option. It would be crazy not to…

Within this subculture, students equated the refrain “remember what brought you to law school” with sustaining commitments to public-interest careers in the face of the amnesiac effects of 1L socialization pushing them toward large firms. However, in the research interviews, these students also described other motivations for attending law school, stressing the general value of obtaining a law degree in the pursuit of unknown career options:

I usually tell people [I came to law school] because I want to help immigrants, and I tell them about the work I was doing with that community before law school . . . but there are a lot of reasons law school seemed like a smart move . . . It seems like you can do things with social justice, but it would be presumptuous of me to say that I know exactly what I’m going to do with my career.

The fact that these students might not know exactly what they want to do, and that they are often more open to the large-firm option than they might admit to their law school peers, does not mean that they are merely fabricating these initial public-interest-sector preferences. I draw on several sources of evidence to support the conclusion that these students generally had a strong inclination toward public-interest jobs. For example, some of the students who later “drifted” to large-firm positions reported identity crises when they faced the decision to upload their résumés for law firm interviews. For students who described the decision to apply to large firms in distressing terms, we can infer that their stated initial public-interest commitments were more than an admissions ploy or merely a performance for peers in the public-interest subculture. Furthermore, the identity-mapping and narrative-interview methods (see “The Professional Identity Formation of Lawyers”) revealed that in 1L these students tended to depict the classic cause-lawyering identity profile, locating the anticipated lawyer role in a central and often highly politicized position in their self-concepts.

2. Decision at the end of the 1L summer

Moving forward to the end of the 1L summer, how did these students approach the decision to upload their résumés to the law firm hiring program? At this point, I find that these students’ career orientations and views of professional identity were generally similar to what they presented at the beginning of law school. They remained uninformed and vague about specific job preferences but retained an identification as a public-interest lawyer. Their perceptions of “corporate law” were often highly disparaging. Rather than being transformed into committed applicants to private firms, many of these students emphasized that their decision to apply to large firms in the on-campus hiring program was a tentative, rushed, uninformed, and risk-averse step. These themes are perhaps best summarized by a 2L who explained her choice to apply to large firms as follows: “The concern for me is, if I want to get where I’m going, I feel like if I don’t jump on one of these trains that are coming by, I’m going to be left behind.”

While we may generally assume that students are simply making financially motivated decisions, quantitative studies have suggested that debt and salary do not substantially explain this drift.

At risk for these students was not only the financial stakes (which of course they emphasized) but also the ability to secure a prestigious position out of law school. This sense of risk was amplified by the timing discrepancy between the large-firm hiring process, through which students can effectively obtain postgraduation job offers early in the second year of law school, and the protracted public-interest hiring process, which can extend into the third year and beyond.

This emphasis on risk was also reflected in students’ concerns that applying to public-interest jobs may be more competitive than applying to large firms (for students in an elite law school). For example, one student contrasted the “streamlined” and “surprisingly easy” process of applying to private firms with his perception that, particularly in the recession context, pursuing a position with a desirable nongovernmental organization or public-interest firm was tantamount to “saying you want to be a major league baseball player.” This student concluded that waiting until his third year of law school to attempt to secure a public-interest position would be too risky: “I’m nervous to take it on faith that one of the nonprofit places is actually going to give me a job.”

These students often lamented their lack of information about legal career paths at the time they uploaded their résumés. For example, one student explained his decision to apply to large firms as follows: “I don’t even know what the options are in public interest. It takes a lot of research and networking . . . and there’s no guarantee that you get anything.”

Thus, for many of the students who underwent public-interest drift, the decision to take interviews in large firms was described as simply a means to “be smart” and learn about the large-firm option rather than closing the door on a potentially valuable opportunity. One such student explained:

I thought to myself, “There’s a chance the firms are not as bad as I thought” . . . and when I talked to my parents about it, I realized I just didn’t know enough about the firms to close off that option before I even go and talk with them . . . . It’s so easy to apply.

3. On-campus job interviews

In the on-campus interview program that takes place at the beginning of 2L, students repeatedly presented new self-narratives regarding their paths to law school and their aspirations beyond, while moderating some (but not all) of their judgments toward large firms. In this process, students typically described reconceptualizing not only their “interview answers” to questions about their professional motivations and plans but also what they perceived to be their “real answers” to these questions. As described below, this generally led students to become more amenable to a stint in these firms under an instrumental account of professional identity.

“[The interviews] are like twenty opening nights . . . . It’s a different audience but it feels like you’re performing the same play over and over,” said one student.

The moderation of judgment toward large firms was evident in students’ descriptions of the recruiters who conducted on-campus interviews, whom students described as “nice,” “chill,” “laid-back,” “more normal than I thought,” “down to earth,” “cool, amazingly enough,” “funny,” and “surprisingly easy to talk to.” These students often reported feeling astonished by these likable characteristics, as they expected firm attorneys to be “conservative,” “sexist,” “evil,” and “soulless.”

Even as some students moderated negative views of corporate lawyers and came to believe that progressive and morally upright people (like themselves) can work in large firms, they continued to differentiate between themselves and corporate lawyers. For some, this differentiation was evident in their discussion of “passing” in what they assumed would be a conservative environment, as one 2L explained: “I felt obligated to launch into this big explanation to reassure [the interviewer] that I am not inexperienced in a conservative environment and that I in fact don’t hate conservatives.”

For other students, the negative moral appraisal of corporate law was barely moderated at all or seemed to become more severe during the on-campus interview process, even as they accepted job offers with these firms. The following two students represent perhaps the least sympathetic portraits of law firm interviewers offered by 2Ls in my sample:

[A] lot of the [interviewers] are grade-A assholes. And you can just tell . . . the only reason they’re doing this is so they can make money, which is really hypocritical since that’s one of the reasons I’d be doing it. But like this lady attorney, who did toxic torts practice. It was amazing just sitting there to talk to her, like seeing the evil. Like, you could see it. It’s like this lady, like if you watch Erin Brockovich, she would be the corporate attorney.

[The on-campus interview program] is an awful, awful process. Everything [the interviewers] describe is so boring. Come talk to more boring people about defending toxic dumpers. I don’t even want to be a lawyer anymore. Everything these lawyers do sounds unappealing. They are boring people.

These accounts are disapproving not only of law firm recruiters; these students are turning these judgments back on themselves for being “hypocritical.” This self-judgment may help explain why these students in 2L describe their upcoming roles as large-firm attorneys in instrumental and distant terms. For students who think of the large firms as “boring,” “unappealing,” and “evil,” it is hard to imagine that they would anticipate deep personal and civic investment in their work.

Nearly all drifting students reported moral reservations about their upcoming positions and claimed that their work in the large-firm sector would be temporary.

As these students crafted their “interview answers” to questions about their career motivations, they often simultaneously worried that they “started to believe” these answers. Several students compared the experience of reciting their interview answers to a repeated acting performance of the same script. This analogy can be explicitly found in the account of a student who had previously worked as an actor:

[The interviews] are like twenty opening nights . . . . It’s a different audience but it feels like you’re performing the same play over and over. By the third or fourth interview, I felt like I knew my lines pretty well.

Drawing on his theater background, this student reflected: “The only auditions where you get the part are the times when you find something true in the monologue you’re reading.” Finding genuineness in one’s interview performance, even while holding moral reservations about playing the role of corporate-law applicant, was typically viewed by these students as both beneficial to one’s chances of securing a large-firm position but also hazardous identity territory. These students often expressed concerns that the repeated utterance of new self-narratives might lead them to become the corporate-lawyer characters they portrayed. One such student explained:

When [I am] interviewing, I find myself kind of lying. They ask, “You had the opportunity to work on [a high-profile political campaign]. Why would you want to work here?” And I say, “Those would always be outside interests of mine. I don’t think I’ll lose those passions. But I’m really interested in commercial litigation.” I don’t know if I grew to believe it. I mean, who knows? I could end up being a partner in ten years. You create a new person when you tell someone this is what I am.

This experience of “kind of lying,” but questioning whether you “grew to believe it” and “create[d] a new person,” suggests that these students actively reconceptualized and interrogated identity during the job interview process. Yet, while this process may alter identities through the renarration of career paths and the moderation of some negative views of large-firm practice, these students still did not appear to be converted into committed large-firm aspirants. The overriding theme among these students is that negative views of corporate law were only partially moderated. Nearly all these students reported moral reservations about their upcoming positions and claimed that their work in the large-firm sector would be temporary—that is, they hoped to return to the public-interest sector after paying down their debt for a few years. These students generally expressed ambivalent, and in some cases severe, attitudes toward working in large firms. Given these continued reservations, it is not surprising that these students’ 2L accounts of professional identity were often relatively detached and instrumentalized in contrast to their 1L aspirations for a personally and politically expressive lawyer role.

4. 2L spring

The final point on this timeline is the spring of 2L after students had accepted summer internship offers with large firms. At this point, many of these students struggled to relieve cognitive dissonance and produce cohesive self-narratives. Although they offered a variety of rationales for working in large firms, they often reported that they were unconvinced by their own rationales. For example, one student who cited the professionalism rationale for taking a large-firm job (arguing that “everyone deserves a defense, even corporate clients”) gave the following qualification: “That’s probably just a justification for myself so I don’t have to feel like a sellout.” The negative appraisals of corporate law firms from the 1L public-interest subculture continued to echo in their 2L accounts; as 2Ls, these judgments were often turned back on themselves. As these students reflected on their paths to large firms, they often castigated themselves for abandoning public-interest job aspirations.

This graphic represents, on the left, a common received narrative of public interest drift found in the existing literature and, on the right, a revision based on the research summarized in this article. As discussed above, this revised narrative is a generalization reflecting the experiences of most (but not all) research participants in the “public interest drift” category.

Reflecting on the data

If we extend the timeline earlier, we might say that for many students the decision to attend law school was as uninformed and risk averse as their decision to work for a large firm. Rather than conceiving of drift as straying from a clear path—from a commitment to a public-interest career to a commitment to a private-law career—it might be more accurate to say that some of these students drift before, during, and after law school. As Debra Schleef argued in her 2006 book, Managing Elites: Professional Socialization in Law and Business Schools, law students generally do not “carefully, or even consciously” choose to attend law school; rather these decisions tend to be “full of uncertainty and a large dash of default,” as students come to law school seeking to invest in “human, cultural, and social capital, not long-term occupational decisions.”

Within the current timeline for law firm recruiting, we should focus on what can be done in 1L to help students prepare for the hiring process.

Because my methods emphasize experiences outside the 1L classroom, I do not directly address how the first-year curriculum may prime students for these 2L interactions with the hiring process. But my analysis does shed substantial doubt on the notion of a widespread conversion of committed aspiring public-interest lawyers to committed aspiring large-firm lawyers over the course of the first year. Instead, I find that the 1L experience appears to nudge many of these students from an initial genuine but unspecific public-interest preference at the beginning of law school to a tentative decision to interview with large firms at the end of the 1L summer.

These students often described cognitive dissonance in their attempts to make sense of both identifying as a “public-interest student” and accepting a position in a large firm. The existing literature has suggested that students who experience public-interest drift tend to resolve this dissonance through post hoc rationalizations, a reduction in altruistic values, and a loss of faith in the effectiveness of public-interest law organizations. Robert Stover’s 1989 study found that “[s]tudents who found themselves drifting away from public interest practice allayed their guilt by quickly and uncritically accepting unfavorable images of public interest practice and favorable images of conventional practice.” In contrast, my analysis suggests that this dissonance is often remarkably unresolved as students expressed skepticism regarding their own rationales for working in large firms. The discrepancy between my findings and Stover’s may owe to our different methodological approaches (Stover’s was primarily a survey project), historical changes in the 30 years between the studies, and differences between the sites (Stover’s study was set at the University of Denver).

These students appeared to emerge from 1L as career entrepreneurs, hungry for information about the practice world while adjusting their self-presentations to suit their expectations for work in different sectors. The rigid views of professional identity expressed by many first-year students, relying on a bright-line distinction between corporate-law and public-interest practice, generally gave way to somewhat more mobile views of their careers in 2L (for more on distinction, see “Public Interest in the Private Sector“). Accordingly, these students often claimed that they would later return to the public-interest sector to realign their work roles with their “true” identities. The After the JD study reveals that lawyers indeed change jobs and even sectors frequently in their first years of practice. A significant number who begin in large firms return to public-interest practice. In the national data from the After the JD study, 7.2 percent of lawyers who worked in the largest firms (of 251 or more lawyers) three years after graduation moved to public-interest practice settings in their 12th year of practice; 0.2 percent were working in legal services or as a public defender.

Teaching first-year students about legal careers

My analysis suggests that students who enter an elite law school with a stated preference for the public interest often make uninformed and risk-averse decisions to apply to large firms at the end of 1L. This decision is followed by experiences of cognitive dissonance and civic disinvestment in their anticipated roles as large-firm attorneys. What can we do then to intervene in these processes?

If we extend the timeline earlier, we might say that for many students the decision to attend law school was as uninformed and risk averse as their decision to work for a large firm.

One proposal would be to push back the law firm recruiting process at top-tier schools one semester to the spring of 2L. This would better align the timing of private-firm and public-interest hiring for 2L summer internships. In this way, students who apply to both sectors could compare the narratives they spin for law firm audiences to those they spin for public-interest-sector employers. Students would also have more time before making job-path decisions to participate in clinics and take elective courses in areas of specialization, including public-interest law seminars. Without the pressures of the first-year course load, students in the 2L autumn would have more opportunities to discuss job options with career services staff. Although this proposal has recently been discussed among some law schools and leading law firms, it has yet to gain substantial momentum.

Within the current timeline for law firm recruiting (particularly in elite law schools), we should focus on what can be done in 1L to help students prepare for the hiring process. Given first-year students’ intense and often anxious focus on the classroom, my discussion here focuses on reforms in the 1L curriculum. Following more than a century of commentary on U.S. legal education focusing on the need to pay greater attention to practice skills, the recent Carnegie Report (2007) praised American law schools for recent progress in the skills apprenticeship and for the longstanding success of the cognitive apprenticeship. But the Carnegie Report suggested that law schools generally overlook the third apprenticeship that professional degree programs should provide in “professional identity and purpose.” This lack of first-year curricular attention to helping students reflect on who they want to be as lawyers and where they want to work may help explain why students in the present study reported feeling unprepared for the 2L job process.

In the wake of the Carnegie Report, some law schools have responded with curricular reforms aimed at transmitting lessons in professional identity. My findings suggest that these reform efforts should include giving first-year students empirical and firsthand information about legal career paths. This suggestion has recently emerged alongside the broader claim that, as Professor David B. Wilkins has put it, law schools owe an “ethical obligation to study and to teach about the profession.” In the absence of curriculum on legal careers, students often learn about their future job options from law firm recruiters, the press, and their peers. Teaching first-year students about legal careers would help prepare them to evaluate the claims of law firm recruiters and ultimately make more informed decisions. This might lead to improved sorting of law graduates into satisfying practice settings. Given data on lawyers’ job dissatisfaction (which may not be as distressing as popularly portrayed but is nevertheless troublesome) and mental health concerns, helping students find well-suited legal work should be a pressing concern for the profession. Furthermore, legal employers may find it beneficial to receive applications from students who have chosen their desired practice sector based on a better-informed assessment of their own interests, aptitudes, and future plans.

If rigorous evaluations of interventions show significant results, this would help us move forward with larger reforms on a more empirically informed basis.

Following from these considerations, I argue that we should reconceptualize the normative issue with the “drift” away from public-interest career preferences to private-sector jobs. In addition to focusing on students’ decisions to work for law firms rather than public-interest law organizations, my findings suggest that we should also consider how these students drift away from investing the professional self with personal and civic significance in their roles as law firm attorneys. I have termed this reconceived phenomenon “professional identity drift.” Within the discourses of students and the profession at large, this may require broadening the definition of public-interest commitment to include work done by large law firms. This argument resonates with recents calls to resurrect the image of large-firm attorneys as lawyer-statesmen, leaders, and wise counselors with vital ethical and civic responsibilities. (For more, see Ben W. Heineman Jr., William F. Lee, and David B. Wilkins, Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century (Harvard Law School, 2014).)

The timeline analysis presented in this article strongly recommends that, at least in the elite-school context, an education in legal career paths should be provided in the first year of law school. This approach has recently gained traction at several schools, perhaps most notably at UC Irvine School of Law and Indiana University Maurer School of Law through the introduction of four-unit 1L courses on the legal profession. A recent commentary by the creators of the UC Irvine course describes their intention to supplement standard professional responsibility curriculum by making “coverage of ethics rules secondary to a related but broader purpose—educating our students about the legal profession to help them to chart successful, responsible, and rewarding careers.” This team of legal educators further emphasizes the importance of providing this course in the first year so that students can “immediately begin their search for a good fit between their aptitudes and values and opportunities in the profession.” This course may already have demonstrated value as measured in the Law School Survey of Student Engagement, which indicated that UC Irvine students reported a stronger-than-average preparation for their employment searches. My findings suggest that such curricular innovations should pay particular attention to fostering students’ professional engagement, civic commitments, and deliberative assessments of doubts and risks around job-path options.

As we innovate, it is important that we also develop assessment tools to examine how these innovations are working. Any effort to substantially revise the remarkably enduring U.S. law curriculum needs to present a highly persuasive body of evidence. At least two ongoing curricular projects dealing with professional identity and purpose are pursuing experimental research methods—comparing (near) randomly assigned treatment and control groups. Victor Quintanilla’s 1L Access to Justice Service Learning Curriculum at Indiana Maurer School of Law aims to help students internalize the civic values and commitments of the legal profession. Quintanilla’s forthcoming analysis assesses these learning outcomes and compares results to students not receiving the curriculum. I follow Quintanilla’s lead in my ongoing collaboration with Howard Gardner of the Harvard Graduate School of Education. We have produced short educational modules that target professional identity and purpose drawing on the pedagogical toolkit from the Good Work Project, of which Gardner is a founding principal investigator. These interactive exercises are paired with information about legal career paths and cautionary tales from the empirical literature about the combination of factors that lead students to experience detachment from the lawyer role. This year we have offered these modules to first-year students along with outcome measures (surveys) drawing from the long line of research that has diagnosed issues law students face. This includes measures of intrinsic work motivation, professional role distancing, public-interest values, and orientations toward different legal practice settings. Our independent-module approach lacks the holistic advantages of more pervasive reforms of the 1L curriculum, but such modules can be particularly amenable to empirical assessment as they involve lower costs and can target specific hypotheses and mechanisms.

As we innovate, it is important that we also develop assessment tools to examine how these innovations are working.

I propose an ongoing and iterative process between research and teaching experimentation, drawing on tools from educational research and other fields. This is arguably an opportune time for this proposal. Amid the ongoing enrollment crisis, law schools appear to be particularly receptive to innovations. At the same time, there is great momentum in legal education scholarship, including the rise of new collaborative networks of researchers, symposia on legal education research, workshops and conferences on fostering professional identity in law school, and vibrant discussion about the future of legal education in prominent legal scholarship blogs. If rigorous evaluations of interventions show significant results, this would help us move forward with larger reforms on a more empirically informed basis.

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Finding the Lawyer Identity Volume 4 • Issue 4 • May 2018

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