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“The First Thing We Do, Let’s Sue all the Lawyers” “The First Thing We Do, Let’s Sue all the Lawyers”

“The First Thing We Do, Let’s Sue all the Lawyers”

Professional service firms endure employment litigation just like everyone else. In fact, because of their unusual structure, such firms may be more susceptible to employment claims than other employers.

Law firms are particularly vulnerable to discrimination claims for several reasons. First, like other learned professions, law firms frequently describe their owners as “partners,” even though the legal definition of partner might not fit every circumstance. Therefore, if persons held out as partners are actually employees, certain policies applied to those individuals may be unlawful. For example, an employee cannot be compelled to retire under an early retirement policy. However, such a policy is lawful for a true partner. Further, an employee might have a discrimination claim for an age related demotion in status or compensation; a true partner is probably unable to assert a discrimination claim for adjustments tied to his age.

Law firm culture and governance also lends itself to potential claims of discriminatory treatment by associates or partners. Lawyers may choose to work with subordinates based upon characteristics which are personal or subjective in nature. Work assignments are not governed by any particular structure, and very successful lawyers are often fiercely independent of management oversight. Loose rules concerning how younger lawyers receive important assignments and secure opportunities to work with more experienced lawyers can lead to perceptions of unfair treatment. Furthermore, senior lawyers may refrain from assigning work to associates for fear that the work interferes with family time, or even because of a belief that an associate may be taking legally protected leave in the future. Moreover, lawyers often work under pressure, and challenging projects or cases can give rise to thoughtless comments after long and stressful hours. Any one of these facts or circumstances could give rise to claims for discriminatory treatment.

Other professional service firms confront similar structural and cultural issues. Frequently, firms are not large enough to support sophisticated human resources personnel, they do not have published work rules and do not conduct regular training on harassment and discrimination issues. Further, regular performance evaluations are either not conducted or are inaccurate.

The lessons for professional services firms are familiar, but worthy of reinforcement.

  • Employees should receive honest and accurate periodic performance evaluations. The evaluations should contain specific comments concerning actual assignments.
  • Firms should make certain that there is a vehicle for monitoring the distribution of work in a fair and even-handed manner. In most firms, that can be managed by a practice group leader.
  • Firms should publish standards for promotion. Annual reviews should compare the individual’s quality of work against those standards.
  • Constructive criticism and difficult decisions should be thoughtful and delivered with appropriate sensitivity by persons who are able to communicate difficult news effectively.
  • Firms deal swiftly with stray comments that are delivered in stressful or even routine circumstances. Make certain that young professionals have an effective outlet for voicing concerns about mistreatment or offensive language.

If you have any questions about how to best ensure compliance with employment obligations in your professional services environment, please contact Jim Davidson at 614-462-2286 or

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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