Feature

Law & Marriage


Now that her four lawyer office has grown to nearly 30 and she is the Denver managing partner, they’re still trying to get Laird to poach her husband.

“He thought about it,” she says, “and ultimately decided it’s probably better if we keep practicing in our separate firms.”

But at least the option was there. It hadn’t been when Laird was coming up for partnership in her husband’s 45-lawyer firm, White and Steele, back in 1996. When she told the firm they were considering marriage, the partnership–against the managing partner’s recommendation–let her know that she would have to leave if they married. Laird landed at a good Denver firm, but it was family-owned and thus had another curious dynamic. She felt the need to jump again in 2000.

“It’s the best thing that ever happened to me,” Laird says of being forced to leave a partnership that was within her grasp at White and Steele. “What a gift it is now to build my own group here.”

But there’s still an edge in her memory eight years later. “I hear a lot of jokes from people at my husband’s firm about them having kept the wrong partner,” Laird says. “I just shake my head, and theirs are still in the sand a bit.”

Sometimes it isn’t easy when a lawyer marries a lawyer. Until the ABA addressed the issue, there was fear of “Typhoid Marys” causing entire law firms to be disqualified from representing certain clients when the men married women lawyers from other firms. Those “pillow talk” concerns gave way to a more general, contextual approach that looks at personal and financial interests that might affect judgment.

The ABA Standing Committee on Ethics and Professional Responsibility, in Formal Opinion 340 in 1975, said that there is no presumption that married couples would violate ethical rules and that, while the unique relationship might require special caution, there should be no special disqualification rules. Most states have adopted such guidelines, and husbands and wives are sometimes–with the informed consent of clients–even permitted to work on opposite sides in matters.

Had such guidelines not been adopted, the fast growing number of women entering the profession would have bumped into a greater number of closed doors.

“There wasn’t much attention paid to it until the 1980s with the change in demographics,” says Deborah L. Rhode, who teaches gender law and professional responsibility at Stanford Law School. “Until lawyer marriages were addressed directly, the rules for other family relationships–siblings and parents and children–were more liberal, and typically those weren’t grounds for vicarious disqualification.” But still, plenty of logistical problems remain, from work demands versus child rearing to still existent nepotism policies at some firms.

Lawyer Vs. Lawyer

Many lawyer couples meet in law school, where the numbers of men and women have become roughly equal in recent years. Many others meet in law practice. There is even a section on lawyer lawyer marriages in the book Should You Marry a Lawyer? A Couple’s Guide to Balancing Work, Love and Ambition, by psychologist Fiona H. Travis, that details how the same lawyerly skills and personality traits that build a career can destroy a marriage.

Then there’s the famous lawyer joke in Adam’s Rib, the 1949 film starring Spencer Tracy and Katherine Hepburn as married lawyers opposing each other in an attempted murder trial stemming from a love triangle. While Hepburn is lost in thought about winning the case and maybe losing her husband, a neighbor who is trying to drive a wedge between them and seduce her says, “Lawyers should never marry other lawyers. This is called inbreeding, from which comes idiot children and more lawyers.” We’ve come a long way.

“I think lawyers marrying lawyers is almost inevitable when we work together so closely now,” says Brooksley E. Born, who retired last year but still keeps an office at Washington, D.C.’s Arnold & Porter for doing volunteer and pro bono work. Born and her husband, Alexander E. Bennett, were both partners in the firm when they married.

The now 700 lawyer firm was open to such arrangements long before many others. When it was Arnold, For tas & Porter in the 1960s, the future Supreme Court justice Abe Fortas’ wife, Carolyn Agger, came over with a group from the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison to join him and head a new tax department. Besides the unusual situation of a man and woman being partners in a firm with other lawyers, jumping firms itself was almost unheard of at the time.

Generations ago, women who managed to get law degrees were considered freaks and often were asked to check their educations at the door and become secretaries and office managers. Many found that the only way for them to practice law was to work in small law offices alongside their husbands or fathers.

One measure of progress is how some shoes have moved to the other foot. While stories about Hobson’s choices, like the one presented to Laird in Denver, still crop up, there is a cottage industry of anecdotes about the brighter side of lawyer lawyer marriages and the prominence of women in the law.

There was this reported quip a few years ago from a New Jersey lawyer when his wife became a judge and he was asked what it would be like to call her “your honor”: “It’s going to be a lot better than the way it’s always been, which is ‘your highness.’ ”

One rather common situation over the past generation or so has been the marriage of young women to older men within law firms, with the age differences ranging from a few years to a few decades. Frequently, it is the second marriage for the man and the relationship develops after long periods –often several years–of working closely together.

“It used to be a lawyer and his secretary or a doctor and his nurse,” says Marna S. Tucker, a family law specialist in Washington, D.C. “Now it’s a lawyer and his partner or associate. They’re working together on cases, and litigation is very sexually energizing. Anytime you work together on something that’s very intense, it creates a sexual energy. “This is something the women’s movement didn’t like to admit,” Tucker says. “As there are more women in the workplace spending more time with men on issues they share, it’s not that they’re subordinate but that they’re sharing, and it creates problems and temptation.”

Though subordination can come into play in odd ways.

“It’s funny when sometimes, usually in litigation, a lawyer on the other side will call my husband and complain about me,” says Phyllis Horn Epstein, a partner with her husband in a three lawyer office in Philadelphia. “They’ll tell him that I shouldn’t subpoena their client, and he’s like, ‘Go away.’ ”

Epstein has been practicing law in the firm since 1980 and married in 1986. For a woman lawyer working with her husband, she says, “It can undermine your own standing. It can just make it a little harder for people to take you seriously. As women age it gets easier, especially with a bit of gray hair and glasses.”

Some of this is in Epstein’s book, Women At Law: Lessons Learned Along the Pathways to Success, published recently by the ABA Law Practice Management Section. When a younger woman in a law firm decides to marry an older partner, there are going to be a lot of closed door discussions around the office when word gets out. It helps if she has already proved herself as a lawyer.

Linda S. Laibstain had been with Norfolk, Va., firm Hofheimer Nusbaum for more than eight years when she and name partner Robert C. Nusbaum told others they were going to marry in 1987. He is so much her senior that he jokes about them not meeting in law school–both went to the University of Virginia School of Law–because he graduated before she was born.

“I’d established myself by then and gotten some big verdicts,” says Laibstain, who has been with the firm, which recently merged with Williams Mullen of Richmond, for 25 years. “I’d gotten a really big verdict [for $825,000] in 1986 with a lawyer from another firm, and I think it was really important that I’d accomplished some things professionally.”

Fine-Tuning Policies

Many firms with nepotism rules have changed, jettisoned or simply decided to ignore them, in writing or in practice.

With 1,750 lawyers, New York City’s Skadden, Arps, Slate, Meagher & Flom is bigger than many towns and might expect some of its residents to marry. The firm still has a written provision that when two of its lawyers intend to marry, the firm reserves the right to ask that one of them leave.

“It’s on the books but I’ve tried to use as light a hand as possible in my 10 years as managing partner,” says Robert C. Sheehan. “It has evolved gradually, and I know that many moons ago it was considered a very difficult situation and one better not faced.” A few years ago, two Skadden associates planned to marry and came to tell Sheehan that, because of it, one of them would be leaving. He advised them that it wasn’t necessary, but they felt it was the right thing to do and one left anyway.

“Recently, two partners in the same department married and we had a huge celebration in the firm,” Sheehan says. “That’s a pretty good indicator of the current real attitude about it.”

Some other firms have been fine tuning policy. Montgomery, McCracken, Walker & Rhoads of Philadelphia had a nepotism policy that didn’t address marriage within the firm until after two partners married in 1997. The firm then amended its policy to say that in a partner associate marriage one of them must leave within a year.

“I think you have to be nimble these days,” says Steven A. Madva, the firm’s managing partner. In the 1970s, he and another associate at the firm decided to marry and when they told the managing partner, they learned that one of them had to leave. Today, associates at the firm can marry.

The most obvious and common arrangement in firms is to keep spouses from supervising or evaluating each other.

Some devise their own personal rules for the relationship, too, such as Arnold & Porter’s Born and Bennett. “We made a very strict rule from Day One,” Born says. “When we walk into the house we don’t talk about the office. We realized that 100 percent of our lives would be Arnold & Porter if we didn’t leave it at the doorstep.”

Some go the other way, living cases day and night.

“I could never leave it at the door, because when you are at trial it’s part of us and the kids, too, 24 hours a day,” says New York City plaintiffs lawyer Judith A. Livingston. “How can you not be working at home into the night and preparing for the next day?” She and husband Thomas A. Moore try all the cases in their 10 lawyer firm and have won more than 100 million dollar verdicts, which has gotten them both membership in the elite Inner Circle of Advocates. They have done some cases together.

Children and chores cause an inevitable rub for many lawyer couples. “The problem generally is that many professional women are married to other professionals and a lot of the women end up staying at home part time or full time,” says Joan C. Williams, who teaches women’s legal history and feminist jurisprudence at American University’s Washington College of Law.

The full time practice of law entails so many hours, Williams says, that the higher you go in the profession the more male it gets. The men working long hours tend to take on fewer household duties and the women are faced with the hard choice of having children with little or no parental care, or cutting back to part time work or quitting. But there are workable situations. In her three lawyer Philadelphia firm, Epstein says, “It’s probably easier working with my husband because I’m not answering to a near stranger when I say I’ve got to go because of a school play or a sick child or whatever. Then there are days when I can say, ‘Hon, you’re leaving to handle this one because I can’t.’ ”

Women’s Issues

There are other pressures in lawyer lawyer marriages felt mostly by the women. Naturally, support groups have sprung up at times.

Washington, D.C., divorce lawyer Marna Tucker and Arnold & Porter’s Brooksley Born both quickly became well known and accomplished in their law practices soon after they started in the 1960s. Both have held high positions in ABA leadership as well as in other professional associations.

Earlier in their careers they started a women partners’ lunch group that has numbered as many as 25 for then monthly and still occasional meetings to discuss their problems as women, lawyers, wives and mothers.

“When we first started we talked about which diapers we used for the kids,” says Tucker. “Then we all got through menopause. One thing we talked about some years ago was how difficult it is when a woman lawyer makes more money than her husband, and does that ever get talked about in a marriage. It can create pressures.”

Washington, D.C., has the highest concentration of lawyers of any city in the country, and Tucker has handled a lot of lawyer lawyer divorces over the years. Lawyers can be a different breed.

“I tell most of them that just because they’re lawyers they shouldn’t think they know any more about this specialty than a schoolteacher would,” says Tucker. “And they’re relieved to know that I know they don’t.”

Tucker has been surprised at the number of women lawyers who have been domestic violence victims, both physical and emotional, including some married to lawyers. “You would think that a woman who is tough enough to make it through law school would know how to control her life and not tolerate that in a marriage,” she says. “Here’s someone who on the outside is a competent professional and her personal life is a total disaster in which she can’t put one foot in front of the other. I’ve seen a lot of this.” Tucker has represented male lawyers divorcing their lawyer wives and come across another problem.

“I had a partner in a big firm years ago who had gotten involved with another lawyer in the firm,” she recalls. “He’d had a long marriage and came to me handling it like a lawyer, saying he was going to arrange this and that and saying all the things a lawyer does when negotiating a deal.

“But he hadn’t talked to his wife about it. That stunned me, and I told him he ought to take care of dealing with her first.”

Thomas Moore, the New York City plaintiffs lawyer married to his partner Judith Livingston, is both philosophical and sharply defining when it comes to the success or failure of lawyer lawyer marriages.

“It either works famously or it goes down in flames,” says Moore. “I don’t think there’s any middle ground.”


Terry Carter is a senior writer for the ABA Journal.


Previous:
Mud and Money

Next:
The Zubulake Road Show


We welcome your comments, but please adhere to our comment policy. Flag comment for moderator.

Commenting is not available in this channel entry.