Moving Away From Ropes and Gray

Students at the Law School who take a seminar called "Corporate Planning and Counseling" share an unusual practice with Harvard's top administrators: Both groups receive legal advice from Ernest J. Sargeant '40.

Sargeant is the managing partner of Ropes and Gray, one of Boston's oldest and most prestigious law firms. Another Ropes and Gray partner, Francis H. Burr '31, helped set the policies which ran Harvard for 28 years, until he resigned from the University's governing Corporation in 1982. A former partner in the firm, James Vorenberg '49, now supervises Sargeant's seminar as dean of the Law School.

Sargeant and Burr say these multiple connections between their firm and their alma mater are purely coincidental, but the two institutions' histories have long been intertwined. Like Sargeant, John Chipman Gray, a member of Harvard's Class of 1859 and one of the firm's founders, simultaneously handled Harvard's account at the firm and lectured at the Law School a century ago. Burr is the third in a string of lawyers which provided Ropes and Gray with virtually uninterrupted representation on the Corporation from 1905 to Burr's resignation, and Gray's co-founder John Codman Ropes, Class of 1857, himself served on the Board of Overseers for eight years.

But Ropes and Gray's most important link to Harvard has always been its status as the University's main legal counsel, a relationship which dates back to the 19th century. This year, however, Harvard's Vice President and General Counsel Daniel Steiner '54 began a series of changes which will significantly alter the way Harvard deals with Ropes and Gray. Steiner is now making a conscious effort to beef up the University's inside legal department. This spring he added Washington attorney Martin Michaelson to his three-and-a-half member staff, with the title of deputy general counsel. The general counsel also plans to bring up to four more lawyers to his office by the end of the summer, though two of them are simply to replace attorneys he is losing. Associate General Counsel Edward W. Powers, who handles the University's labor relations, recently gave up his non-labor responsibilities to work half-time as a management consultant for Administrative Vice President Robert H. Scott. In addition, Assistant General Counsel Dianne B. Fraser will leave Harvard this summer for family reasons.

One of the main reasons Steiner cites for his move to enlarge the Harvard legal staff is to save money, since in-house salaries tend to be lower than the rates major law firms charge. Ropes and Gray's top billing rate in 1982, for instance, was $200 an hour, and last year Harvard paid the firm Sl.221, 188 in fees. Steiner also notes that University lawyers are generally more in tune with Harvard policies and practices and are therefore better able to handle cases involving essential University issues such as the tenure process. Harvard currently uses its own staff as much as possible to handle legal problems involving academic or other important issues, Steiner says. When Ropes and Gray or another outside firm does legal work on such issues, they are supervised closely by Harvard lawyers.

Some area lawyers also believe a larger internal staff will give Harvard greater flexibility in resolving legal conflicts. Lawyers from outside firms tend to be much less flexible in negotiating out-of-court settlements because they cannot make any compromises on their own authority, several Boston attorneys note. "They won't do or say anything without checking it out with their client," explains one.

But Fraser says the changes will probably not affect Harvard's flexibility in resolving cases. "When a case gets to Ropes and Gray, usually it's already failed a settlement attempt," she points out. She adds that she has personally conducted settlement negotiations for all the suits she has supervised.

Steiner's decision to expand Harvard's inside legal staff is not unusual in the legal world. Over the past few years there has been a trend towards larger in-house staffs among universities as well as private corporations. Lawyers for other major universities and corporations consistently cite the same reasons as Harvard attorneys for their efforts to rely less on outside counsel: cost containment and greater familiarity with organizational policies and procedures.

Marilyn K. Kolb, an attorney for the First National Bank of Boston, adds that in-house counsel also tend to prevent legal problems, since company employees feel more comfortable asking them questions about potential difficulties. "It's a little less intimidating to call a lawyer who works two floors below you," she says. The First National Bank, which uses Ropes and Gray as one of several outside firms has expanded its legal staff from about eight attorneys five years ago to 37 today, Kolb says.

One surprising advocate of large in-house legal operations is Burr, who earns his living representing corporate clients. He not only favors a strong internal legal office at Harvard but says he had recommended that his clients do the same. Burr agrees with Kolb's claim that inside counsel often "solve problems before they get big." In his experience, he says, in-house legal offices have generally only proved inefficient when poor lawyers have run them.

Despite the growing enthusiasm for in-house lawyers, almost no legal professional has suggested that institutions drop outside counsel altogether. And Steiner predicts that, even with a larger legal staff, Harvard will continue to rely heavily on Ropes and Gray's lawyers for complex, specialized legal advice and for representation in major court battles which require more manpower than the University can employ on a permanent basis.

But one chapter in the firm's relationship with Harvard may have ended when Burr resigned from the Corporation and was replaced by Colman M. Mockler Jr. '52, the chief executive officer of Gillette (a Ropes and Gray client whose account Burr helps handle). During his years on the governing board. Burr says he avoided personally handling any legal work for the University, citing an old lawyer's adage. "An attorney who represents himself has a fool for a client."

But Steiner says he is wary nonetheless of the potential for conflicts of interest when a Ropes and Gray lawyer serves on the Corporation, and has urged that the two bodies stay distinct. "There weren't problems in the past," he says, "but in the future I think it's best to keep the two separate."

Harvard's shared history with Ropes and Gray goes back to the firm's first days, shortly after it, was founded after the Civil War. Gray, a soldier fresh out of the Union army, founded the firm with his schoolmate Ropes in 1865. A few years later, President Charles W. Eliot, Class of 1853, turned to Gray for legal advice and inaugurated the Harvard-Ropes and Gray connection.

Ropes and Gray has kept the Harvard account since then, as it has grown into one of the largest and most prestigious Boston law firms, today numbering about 175 lawyers. Now, the American Lawyer Guide to Law Firms calls it "the prototype of the traditional, old-line Boston firm," and Goldston Professor of Law Detlev F. Vagts '49, a specialist in corporate law, characterizes it as "the most old-line, the most complete, and the most established" law firm in the area.

Ropes and Gray has always attracted a large number of its attorneys from Harvard Law School. Sargeant recalls that after he joined the firm in 1947, almost all the lawyers hired over the next five years were Law School graduates. That trend has continued to the present: 58 percent of a recent batch of new associates in the firm were Law School alumni, according to the American Lawyer Guide. And Sargeant says, "We still have a keen interest in hiring from Harvard."