Partners versus associates in Biglaw. I am not referring to the annual end-of-summer softball game. This is more serious. Many groups are flat or slow. Even though associates leave firms and get replaced very slowly, or not at all, and even though incoming associate classes have shrunk, Biglaw firms make every effort to keep associates as busy as possible. For one, associates are expensive, with their high salaries and real benefits packages. Plus, it is always easy to generate some make-work for them, particularly when there are not as many around as there used to be.
These efforts are surely welcomed by associates, but at what cost to the firm’s other timekeeping employees — the partners? Does the fact that a partner “got elected,” has the title, signed a partnership agreement, and has money (either their own or a friendly bank’s) in the firm’s capital account mean that he or she should have first dibs on all available work? Put another way, do I have the right to insist that a fellow partner assign me work rather than an associate? Do I need to make sure my fellow partners are all fully busy before I assign some of my hard-earned client matters to them? Assuming that the clients do not care about who services a particular matter (e.g., it is a new client who only cares about the price and not who is providing the service), these are very difficult questions. Unfortunately for many in Biglaw today, they are also timely….
It is no fun for anyone in Biglaw when things are slow. Sure, firms worry about keeping their associates busy. But they should worry far more about keeping their more expensive non-equity (and soon to be de-equitized equity partners) busy. At many firms, a non-equity partner can make multiples of a junior associate’s salary. Ditto for an equity service partner. Technically, it should be easier to keep a partner busier than an associate. I have never had a client complain about a fellow partner’s time on one of my matters (or an of counsel’s for that matter), with one exception — when the client felt that I was handling something sufficiently well that there was no reason for a more senior partner’s involvement to a certain degree. That exception aside, clients usually have no problem with staffing fellow partners in lieu of associates on matters. In fact, they sometimes think they are getting more value for their money. In contrast, associate time comes under tremendous scrutiny nowadays. (Practice tip: Want to avoid that scrutiny if and when it comes? Heavily discount your associate’s time on the next bill. Make up some of the lost profit by delegating a task or two to a higher-charging partner if possible.)
Honestly, in many groups, it is easy to find an idle partner to jump on a matter than it is to find an associate. In fact, today’s associates seem more enthusiastic about trying to avoid assignments than they are about accepting them. I do not blame them. Never before have the long-term prospects for so many in Biglaw seemed so tenuous. Today’s Biglaw firm leaders are more interested in postponing last call for them and their senior partner colleagues (the majority of whom would have long since retired in the old Biglaw) than they are in preparing their firms for the next generation or two. Associates make enough money that dangling the prospect of an extra ten-percent “discretionary” bonus for “high performance” in exchange for an additional two hundred soul-sucking billable hours is a non-starter for many of them. I have heard more excuses in the last year or so for why associates can’t handle something (thankfully not so much on my matters, but frequently on matters other partners want me to delegate for them) than I ever gave myself in my entire associate career.
While associates are emboldened to actually avoid work in this environment, I have seen an increasing desperation take hold in the partnership ranks. Mention a potential matter in casual conversation, and you are likely to hear that “I would love to help” or “Let me know if I can lend a hand” or some other platitude meant to convey collegiality while masking a real desire for some additional hours. Because more than ever, partners know that their personal bottom line is correlated very strongly with their performance. To be sure, there is nothing wrong with that, and many in Biglaw would be best served by disabusing themselves of any notion that the title partner should automatically bestow a compensation premium.
But I still struggle with answering the questions I posed above. On the one hand, I admit to a pang of jealousy when an interesting new case comes in through the marketing efforts of another “team” in my practice group. And I bemoan the “lost” hours that our firm could have given to partners when an associate leaves — lost in the sense that instead of enhancing a fellow partner’s productivity and skills, and increasing the firm’s collective experience base, they were given to an associate who is now looking into starting a taco truck for serving lunch to shale gas drillers in North Dakota. At the same time, though, I default to assigning work in my practice area to my core team of associates, particularly on matters I originate. Why? Because I am thinking long-term and quite frankly trust my associates to keep the costs down and get the work done efficiently. And I know that delivering matters on budget and efficiently is the key to repeat business. My team understands that, and strives to meet those standards.
Unfortunately, I do not have the same level of trust in my fellow partners. Not that they are bad people, or dishonest billers, or incapable of efficient work. They are first-rate professionals. The problem is that if they need me to assign them work, then they are incentivized to “maximize” their hours on that work even more than my associates are. That is not a healthy incentive in my book. One solution I can think of is to bill partners out at associate rates, where those partners are being utilized in an “associate” capacity. There is an obvious problem there, of course: everyone will need to be honest about what is going on. I would have no problem doing a fellow partner a “favor” in this regard, even as I would expect them to give me their efficient best in return. But from what I have seen, I am in the minority. Too many in Biglaw have a problem with brutal honesty when it comes to these issues. Unfortunately for them, circumstances may change that. In the meantime, we are left with tough questions.
Do you think that partners should have priority over associates for billable work? 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].