About a month ago, I read an article about a new position available for experienced attorneys at a certain Biglaw firm. The firm? Kilpatrick Townsend. The position? Something called a “department attorney.”
Before we get into what that is, and some of the implications for Biglaw if this new kind of position takes hold, let’s take a look at the listing of open positions on Kilpatrick’s website. Currently, the firm is advertising for nine associate positions, six of which are in the patent area (including two for patent “prosection” (sic) associates, who hopefully will be better at including all the letters in a word than the firm’s recruiting staff).
Want to be a department attorney? Well, for you there are ten open positions. The breakdown? Eight in trademarks, two in patent prosecution. The common denominator of those disciplines? Shrinking margins for Biglaw, in the face of competition from IP boutiques specializing in volume work, and bulked-up in-house departments doing more on their own. In light of those shrinking margins, the firm’s desire to hire more department attorneys than full-bore associates is understandable. At least they are hiring….
Department attorneys are not associates, but rather glorified staff attorneys, if that. Compare Kilpatrick’s department attorneys with Paul Weiss’s staff attorneys. On the one hand, neither are partner-track positions. On the other hand, while it is impossible to compare their relative compensation or benefits packages (whether between that offered to these non-associates by the two firms, or between these non-associates and regular associates at those firms), at both firms these attorneys are employed full-time. The advantages of being a Kilpatrick department attorney? Unlike Paul Weiss, which signs its staff attorneys to three-month renewable engagements, at Kilpatrick there seems to be no such restriction on employment term. And Kilpatrick is clearly looking for some measure of subject-matter expertise when hiring for these positions. Unfortunately, the expertise seems to be needed in areas where margins are tight and the viability of those practices in Biglaw has come into question. So you can have a job, but because you picked the wrong specialty, you can’t be a real associate, and it is best not to have inflated expectations of job security because your practice area may soon go the way of Debevoise’s trust and estates practice. Biglaw innovations sure are grand.
I would never want to be a department attorney. But that does not mean it is a bad idea to try.
First, let me explain why I would never want to be a department attorney. From the beginning of my career, I have found that controlled “aggression” and friendly but unwavering ambition is the only way to succeed in Biglaw. And outside of Biglaw, for that matter. Of course, my opinion is informed by my personal experience, in which I had to scrape by early on in order to break into Biglaw. Having gotten in, the idea of taking a step back is anathema.
I also see another consideration. One of the major factors in my favor during my Biglaw career has been the stability of my personal life, as a married man with a young family. As a result, the expectation always was that I wanted to become a partner, and was willing to do whatever it took to get there. Being able to articulate that goal without hesitation sends an important message to the very audience that needs to be convinced to make one a partner — older partners. I am very skeptical that someone who voluntarily takes themselves off the track could ever truly recover, unless they were able to move to another firm. And I think that other firm would want to write off the years as a department attorney, and see two years or more of someone as a partner-track associate. Hitting the pause button on a career is rarely a good idea, particularly when the Biglaw treadmill is stuck on overdrive, and throwing anyone moving slower than the Roadrunner right off into oblivion.
Second, in today’s environment, I do not know that it is unfair to ask everyone working in Biglaw what their intentions are within reason. Do you want to make partner? And if you make partner, are you willing to go out and attract new clients while retaining and growing relationships with existing ones? If your answer to those questions is an unequivocal yes, you may have a shot to demonstrate your ability to meet those goals for a few years. If your answer is maybe or less, then I think it is fair in today’s Biglaw to suggest that you are waiving your ability to complain if you are first to be fired when work dries up. Nor do you have much of a claim to plum assignments or the expensive training necessary to take even the best associates and make them capable attorneys. By choosing the department attorney position, you have declared that you want to be a limited profit center at best for your firm.
Despite my awareness of some of the drawbacks of this “deal” for Biglaw aspirants (of course I am partial to my idea for revamping the associate experience, particularly in lower-margin or not-yet premier practice areas), Kilpatrick was apparently flooded with résumés when they first posted openings for these positions. Interestingly, it was reported that 95 percent of those submissions came from female attorneys. Kind of supports my view that the Biglaw model presents big challenges to (especially younger) female attorneys who also want to have families. Does this mean that the overwhelming majority of female associates in Biglaw do not want to be on the partner track? Of course not. But it does show that women are apparently more willing than men are to state a desire for an alternative working environment and structure. Unfortunately for them, by doing so they will always be working at the mercy of the men and women willing to play by Biglaw’s old rules.
Ultimately, the biggest risk for department attorneys is as follows: unlike partner-track associates and partners, you have no incentive to grow the pie for everyone else, a bedrock idea underlying the large law firm model. And clients pay good money to give their work to partners who are at least projecting the illusion that they will give their all. Incentives work. Trying to mold the Biglaw experience to more corporate expectations of workload and life balance has not really been shown to. So the burden is on firms like Kilpatrick to show that department attorneys work. They apparently have plenty of candidates to help them try.
What do you think about the development of Biglaw positions like department attorneys? Let me know by email or in the comments.
Anonymous Partner is a partner at a major law firm. You can reach him by email at [email protected].