Biglaw, In-House Counsel, Partner Issues

The Election To Partnership (Or, The Demise Of Hard Choices)

Once upon a time, a partnership decision was a real, up-or-out, decision -- and that might've been best for associates.

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dartboard pen inside straightSometimes, you should put people to a hard choice.

I know that we don’t like to do this: It’s easier, of course, to make an easy choice.

But, sometimes, you should force the hard choice.

Like, for example, when firms are considering elevating associates to partnership.

Once upon a time, a partnership decision was a real, up-or-out, decision. The firm made the candidate a partner, or it let the candidate go. The choice was black and white.

But now, there are many shades of gray. The firm can defer the partnership decision for a year (or two, or three). The firm can make the associate a senior counsel and defer a partnership decision for a while (or forever). The firm can make the associate a non-equity partner and leave the former associate in those ranks for a year, or a decade, or a career. The firm can invent some other category of non-partner lawyer, and put the associate in that group for a while. Anything other than making a hard decision.

Of course, when the firm is permitted to make the easy choice — keep the person around, but don’t share the partnership’s wealth — it naturally chooses that route. So virtually everyone is deferred, or re-named, or moved into the non-equity ranks, or somehow treated in a not-quite-associate, but not-quite-partner way. For a while. Or forever. Who knows?

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On the one hand, this helps associates: They don’t lose their jobs.

But, on the other hand, this hurts associates: They don’t get promoted into the partnership ranks.

Maybe it would be better (for associates) to insist that firms made the hard choices.

(I’m thinking here about associates only. It may not help the firm to require hard choices; the firm may prefer to kick the can down the road. And it may not help clients to require firms to make hard choices; clients might lose the services of lawyers who perform good work. But, from the associates’ point of view, maintaining hard choices may be in their best interest.)

Where else do we permit easy choices when we historically required hard ones?

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The decision whether to prosecute a company.

Once upon a time, prosecutors had to decide whether companies were guilty of crimes (and should be prosecuted) or were not guilty of crimes (and should not be prosecuted).

No longer.

Now, prosecutors can choose to make (relatively) easy choices: They can enter deferred prosecution agreements, or non-prosecution agreements, or, I suppose, something else that suffices to show that the prosecutor’s office is doing its job, without putting the prosecutor to the burden of proving guilt beyond a reasonable doubt.

So what do prosecutors do?

They make the easy choice: They enter agreements that don’t require prosecution.

Companies often yield (because the companies avoid prosecution), and the law may be distorted (because the prosecutor can extract a pound of flesh for not-quite-criminal conduct that the prosecutor couldn’t-quite-prove violated the law), but everyone goes home sufficiently satisfied.

Be wary of this.

We think we’re being clever when we eliminate the need for hard choices. But sometimes a hard choice is precisely what the situation requires.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. 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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