After graduating from Stanford Law School in 1951, Marshall Small clerked for U.S. Supreme Court Justice William O. Douglas and later served as an active duty army officer in the Office of the Judge Advocate General. In 1954, he joined the firm now known as Morrison & Foerster and served in many leadership roles there, including managing partner, general counsel, and chair of the firm, and was an early champion of law firm diversity. Small's corporate practice included negotiating mergers, representing bidders and target companies related to tender offers, counseling boards of directors, and serving as special counsel to board committees.
An Advisor to the ABA's Business Law Section, Small also served on the Section's Committee on Corporate Laws from 1974 through 1982. He was a member of the Subcommittee on Functions and Responsibilities of Directors and helped prepare the original Corporate Directors' Guidebook. He's a member of the American Law Institute, a fellow of the American Bar Foundation, and served as a reporter for the American Law Institute's Corporate Governance Project from 1982 through its completion in 1993. A onetime assistant professor at Stanford Law School, he's lectured and written extensively on corporate and securities law. Described by a colleague as a "corporate law genius," Small was awarded the California State Bar Business Law Section's Lifetime Achievement Award in 2002.
Originally from Kansas City, Missouri, Small has been married for 58 years. Amidst his law practice, serving as general counsel to his firm, and his extracurricular work at the ABA and other organizations, Small also served for years as an unpaid teacher's assistant in a primary school in a low-income neighborhood.
What inspired you to attend law school and practice law?
While I was in college at Stanford, I took two law-related courses, one on constitutional law and one on business ethics. Both were very stimulating to me. One professor, in particular, encouraged me to go to law school. As far as practicing, after clerking, I was offered a teaching position on a temporary basis at Stanford Law School - but it was only temporary. I was newly married and I needed to make sure we had a roof over our head and food on the table. So I felt I'd better start practicing law.
What was the primary lesson that you took away from your experience as a U.S. Supreme Court clerk?
I'm not sure whether there was a primary lesson or not. I clerked for William O. Douglas during the '51 term. He was a tough boss - no nonsense when you were working across the desk from him on the Court's work. He was very bright and very quick. You learned to be responsive and responsible. When you were able to deal with him outside of the work at the Court, he could be an interesting, charming person. But it was no nonsense when you were with him at the Court. He relied on you to make sure that you were checking him and doing everything correctly.
What was the primary lesson you learned while serving as a lawyer in the Army JAG Corps?
For one thing, I developed a great deal of respect for the regular army officers. They were very competent professionals. And I was grateful just as a citizen that they were devoting their careers to help the United States. The second thing was the realization that the military recognized the primacy of civilian control of the government, which is very important to a democracy. One task that I was assigned involved the separation of powers. So I spent a fair amount of time down in the Pentagon law library reading the Constitutional Convention debates and I came away with a great deal of respect for the Founding Fathers in terms of the constitution that they hammered out. So those were things I carried with me in my memories.
Why did you specialize in corporate work?
When I joined our firm, it was a midsize firm. I was the twenty-third lawyer. In those days, it wasn't departmentalized and you did a little bit of everything. I started doing corporate work because the firm had a great deal of corporate work then and they gave me responsibility early on. By the time I was an associate there for two years, I was carrying substantial responsibility. I enjoyed the work. I enjoyed the partners with whom I was working. And so it was just natural that I became specialized on the corporate side of the firm and I never regretted it. I've worked from time to time over the years with litigators on various matters, both tender offer defense work and special board committee work, where we worked as teams. But, basically, during my career, it was specializing in corporate work.
What were your early years in practice like and how does it compare to the practice for young lawyers today?
The research, for one thing, was much more grueling. Document preparation was in the dark ages. Then, you typed with carbon paper. There wasn't such a thing as computers in those days - the way younger lawyers regularly use computers today. As for communication, there was no such thing as e-mail or the Internet. It's just a completely different world. In research and communication, there are so many more things that are available to you now electronically that there weren't then. So I think, in many ways, it's easier to practice as a young lawyer in terms of the tools you have available to help you that you didn't have in those days.
Why has law firm diversity been an important mission for you?
When I came into the practice, things were starting to change. I am of the Jewish faith and law firms were just opening themselves up to people of the Jewish religion at that time. I was the first at our firm in many years. And it was important to me to see that there was a diversity viewpoint in the firm. There were no women lawyers in those days. As matter of fact, there were very few women in law school - I think there may have been three women law students in my law school class. I'd had a strong desire for diversity, going back to the days when I was a teenager in high school and was involved in a community group that made it an effort to see that people of different races and religions were together and got to know each other. During World War II, the leader of the group made an effort to include Japanese Americans. So I carried that experience with me and always looked to build bridges to different types of people. It's been particularly fulfilling and satisfying to see our firm develop into a very diverse firm in the best sense.
Describe what it was like to serve as a general counsel for the firm of which you were a partner.
A firm our size has a thousand lawyers in a number of different offices, including overseas offices, and is a very large institution with lots of issues. One of the things that sets law firms apart when you're acting as counsel to the firm is the fact that they are professional institutions. So professional ethics are one of the things that you're often dealing with, not just conflicts of interest, but the variety of professional ethics issues, like unauthorized practice of law and the partnership agreement. Traditionally in our firm I have been responsible for many years for interpreting and amending the partnership agreement. It's a fairly complicated document now. There are also issues of structure of the various firm entities in the various offices overseas. It's an interesting and challenging task. It's been a very satisfying thing to do after I retired as an active partner to be able to continue to do this and have the firm feel that I could still be useful.
What has been the most fulfilling moment in your work so far?
I don't know that I'd say there was any one fulfilling moment. I had my work on the ABA Business Law Section Corporate Laws Committee, which I found quite fulfilling when I was doing that back in the '70s and '80s. And my work as a reporter on the American Law Institute's Corporate Governance Project, which took from about '82 to '93, I found quite fulfilling and satisfying. On the professional level, my work in advising board committees on special investigations and such and defending take-over targets I found quite fulfilling.
What was a highlight of serving as a Business Law Section Advisor?
I suppose it was the speech I gave to the Council, which is traditional for Business Law Advisors to do. I enjoyed that. I also enjoyed the panel on which I served - it was giving advice to young lawyers about the challenges they would face and how to meet those challenges. Being involved on the Corporate Laws Committee in the Business Law Section really instilled in me a long-term interest in corporate governance and corporate governance trends.
Is there a commonality among the most successful business lawyers that you know?
For one thing, I think you need to treat your opponent, who's on the other side of the table, with respect. And also try to think in terms of what they're trying to accomplish and whether you can build bridges so that you can accomplish what your own client wants to try and achieve and, at the same time, trying to see if you can meet those objectives of the other party to the transaction. Successful business lawyers do that.
Who is your idol in the legal profession?
I'm not sure that I would characterize anyone as an idol, but it was more of in terms of respect. And I'm not sure that there is any one person. It goes back a long way. I watched John W. Davis of Davis Polk argue three cases before the U.S. Supreme Court and I thought he was a consummate appellate litigator. Another is Herbert Clark, a senior litigator when I joined the firm, who was the soul of integrity as well as nationally known litigator. And John Austin and Bob Raven, who were senior partners here.
What are your interests outside of the law?
Reading - mostly nonfiction and history - and gardening and travel. My wife is a birder so I keep her company when she goes looking for birds and we've been to various places around the world.
Who has been your most influential teacher?
I guess when I come down to it, maybe my most influential teacher was my seventh-grade elementary school teacher because she taught me to really work hard and devote myself to my studies. Before that, I'd been an indifferent student in elementary school. I learned to work hard with her, and I just remember her for that reason.
What is the best idea that you've ever had?
Well, I guess two: Number one, marrying my wife, and number two, joining my law firm, Morrison & Foerster.
What made you pick MoFo among other firms?
I had the feeling that, of the various firms that I interviewed with in San Francisco, they were interested in me as a person. They made sure that I went around and saw almost all the partners in the firm when I interviewed. I had three offers at the time. I chose the Morrison firm and never regretted it.
What is the most unique thing about you?
Well, unique is one-of-a-kind and I don't consider myself one-of-a-kind. But one of the things that may be is interesting is that I'm still working at 85 and enjoying it.
For lawyers who enjoy their work and would like to be involved in the profession as long as you have, well into their eighties, do you have any tips or words of advice?
You need to keep interested in what you're doing. Keep physically active as well. It's very important to be connected with the world. That's the best advice I have. And consider yourself lucky if you have your health and also have the companionship of a good spouse to keep you on your toes.