Biglaw, In-House Counsel, Lateral Moves, Partner Issues

Inside Straight: ‘The . . . Toxic Notion That You Hire The Lawyer, Not The Firm’

I really like what Bruce MacEwen does over at Adam Smith, Esq. He thinks hard about the legal profession, and he says smart things that you won’t find elsewhere.

But he’s not perfect. He recently wrote that clients were partly responsible for the demise of Dewey (which may well be true) because clients had endorsed “the . . . toxic notion that you hire the lawyer, not the firm.” Here, I beg to differ.

Hiring “the lawyer, not the firm” is not a toxic notion; it is sanity.

Hiring the firm would be nuts, for at least two different reasons. First, the firm has many invidious institutional incentives: Let’s suppose you “hire the firm” by calling the managing partner (or head of litigation, or whoever) to say that you have a new case that you’d like the firm to handle. The managing partner naturally pokes around to see “who has time.” Presto! Your case would be staffed with the partner who has nothing else to do, because the firm can’t foist that guy off on any other sorry client. That inept partner would likely be assisted by a few associates who also “have time,” and you’d be wallowing in B-team city.

Not for me, thank you very much.

If you’re an intelligent client, you don’t want the lawyers who “have time;” you want the lawyers who “are good.” There’s no reason to think those two categories overlap, and plenty of reasons to think they do not.

And I’m just getting warmed up here . . .

The notion of “hiring the firm” also implies that all lawyers (or at least all partners) at a firm are created equal. You call Bigg & Mediocre, and it makes no difference who the firm assigns to the case, because you trust the firm.

That’s nuts.

Once a firm grows to a certain size, quality will almost surely no longer be uniform. This happens for many reasons: The firm merged with an outfit in Denver that wasn’t as strong as the original New York office; the firm hired laterals for their books of business rather than their legal skills; the firm made a few bad partnership decisions years ago, and those mediocre partners, unable to tell good from bad, have since successfully lobbied to have other mediocre lawyers voted into the partnership ranks; whatever.

Over time, the partnership ranks grow spotty. In that environment, hiring “the firm” is insanity. You don’t want “the firm;” you want “the good lawyers who happen to work at the firm.”

Years ago, I heard a (competent) partner at an extremely large firm scoff when asked to let an unknown colleague in his Los Angeles office work on his case: “There aren’t 400 good lawyers in the entire United States. And I’m supposed to think that all 400 are my partners at this firm? That would be a hell of a coincidence. There’s no way I’m trusting some partner in LA who I’ve never worked with before!”

Or another time, and a different partner (on his firm’s management committee):

The guy on the management committee asks: “Who can head up this project?”

“How about partner Smith?”

“No, this is a tough issue; we need someone smart. Who else could we use?”

Partners don’t trust their own partners, but clients should hire the firm and not the lawyer?

No way.

The “toxic” part of hiring a lawyer instead of a firm may be a client’s instinct to move its legal work when its preferred partner moves laterally between firms. Moving business to follow partners may contribute to a “free agency” mentality that encourages bidding wars for star partners and corrodes the meaning of partnership at both of the firms involved in a lateral move. I can’t say whether I’d be tempted to move business if my preferred lawyer changed firms; to date, I’ve had the good fortune not to confront that situation.

But I can tell you to a certainty that virtually all large firms have sporadic quality; that every firm has an A-team and a B-team, and everyone on the A-team knows the difference; that firms as institutions strive to keep all lawyers busy, which means that clients who don’t pick their lawyers will often be saddled with the B-team; and that smart clients won’t fall for this.

Sorry, Adam Smith, Esq: Toxic or no, I hire lawyers, not firms, and I’m convinced I’d be nuts to do otherwise.


Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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