Biglaw, In-House Counsel, Small Law Firms

The Unspoken Differences Between Biglaw And Small

And thoughts from in-house columnist Mark Herrmann on what those differences imply.

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Everyone writes about some of the perceived differences between big law firms and small ones. Which type of firm is better in terms of associate training, collegiality, opportunities to work on interesting matters, and the like?

But fewer people think about words that have different meanings to lawyers who work in big firms rather than small ones. (As regular readers of this column know, I’ve lived both lives: I spent five years at a 20-lawyer firm in San Francisco, and then 20 years in the Cleveland and Chicago offices of one of the world’s largest firms.)

Let me take a crack at the more obscure issue.

“Conflict check.”

At a small firm, “conflict check” means that Vito gets a call about defending a long-time client in the BigCo litigation. Vito puts his client on hold, sticks his head out of his office door, and shouts down the hallway, “Yo! Have we ever represented BigCo?”

Silence implies that the firm has not. Vito goes back to the phone and tells his client, “I’ve checked conflicts. We can handle your case. Feel free to tell me the details.

Things don’t work quite that way at large firms. When Michael gets the call from his client who wants to be adverse to BigCo, Michael says, “Thanks for calling me about this. I’d be delighted to represent you, but I can’t commit to handling the case until I check conflicts. Please don’t tell me anything more about the case. I’ll run a conflict check and get back to you as soon as possible.”

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Michael then asks a conflict-checker to do the necessary search of the conflicts database. The computer searches for “BigCo” and “Big” and “Co”; and all corporate entities that have those words (or fragments) in their names; and parents, subsidiaries, and affiliates of all those corporate entities. Two hours later, Michael receives a 53-page spreadsheet with the names of all current clients, former clients, and potential future clients whose names the computer generated. The list is broken down not just by client name, but also by individual matter, and many matters were handled by different “responsible partners” at various of the firm’s 30 offices around the globe.

Michael dutifully sends out emails to the partners responsible for every matter that might create a conflict. A couple of those partners are in trial, and a few are on vacation, and one no longer works for the firm (but no one ever bothered to tell Michael). The guy in the Taipei office (who Michael has never met) naturally refuses to answer emails, despite many nudges.

Three weeks later, Michael can at last return the call to his client, happily reporting that he can take the case. To which the client responds: “Thanks very much. We got a TRO on the afternoon that I called you, and the preliminary injunction hearing is set for this coming Monday. As you might imagine, this implies that we retained other counsel. But we’ll be sure to think of you the next time something comes up.”

These different experiences in firms big and small don’t just mean that life varies by firm size. They also mean that, when I write the words “conflict check” in one of my columns here at Above the Law, some readers are imagining a silly little non-event that requires three minutes of effort, while others are imagining a weeks- or months-long headache. People react differently depending on how they interpret the words.

So, too, with the words, “client that generated $250,000 in fees last year.”

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At a small firm, those words may well mean: “Incredibly valuable client, whose work we treasure.”

At Bigg & Mediocre, those same words may mean: “Relatively small client that’s creating an awful lot of conflicts for us. Any chance we can get rid of ’em?”

Or suppose a senior associate finally gets that first call from a new client asking to retain the associate. Sonny can’t believe it! “They want to hire me,” he’s thinking. “How flattering! And the partners will be blown away that I’ve managed to attract new business at my tender age.”

At a small firm, the partners are indeed impressed: “That’s great! Congratulations! We’re delighted to see that you have an eye for generating business. Let us know if you want to kibitz about any tough issues that come up.”

At a large firm, the partners may react quite differently: “What’s the matter worth? Maybe ten grand in fees? Heck, it’s not worth running a conflict check for ten grand. Call that client back and refer her to the little firm down the block.”

Or, if the matter is more substantial: “That sounds like an interesting matter, but it’s a one-off situation. We don’t do any other work for that company, so this isn’t an important institutional relationship for us. And the potential new client is a big company, which implies that it will create a lot of conflicts. We can’t do one-off litigation for a big company, because that will prevent us from suing that company on behalf of our many existing clients (who are worth much more to us). Nice try, Sonny, but you can’t take the case.”

I’m not criticizing either of these two worlds. Firms of different sizes act differently. They have different internal systems, and they protect their self-interest in different ways.

But the differences do imply at least two things. First, it can be difficult for a lawyer to generate new clients at a big firm, because the firm already represents major institutional clients whose interests will naturally come first. Second, when you read (or use) words like “conflict check” or “big client” or the like, remember that you interpret words based in part on your personal experience, and that creates room for miscommunication.

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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