October 23, 2012


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In Up or Over

Making Partner

It's Up or Out No More as Alternatives Shake up the Traditional Partnership Model

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When the Message Is "Out": Steps to Ease the Termination Process

by Marcia Pennington Shannon

It is not a surprise that the "up or out rule" still applies in most law firms. Under this model, it is common to ask an associate to leave the firm once the decision has been made that he or she will not be promoted to partner. What's too uncommon, however, is handling the situation in a humane and professional manner.

When an associate is being asked to leave the firm, it is a genuinely uncomfortable situation for everyone involved. No one likes telling other people that their services are no longer needed, and certainly no one wants to be on the receiving end of the news. That doesn't, of course, change the fact that the situation continues to be a reality in the majority of law firms. But there are ways to handle the termination and transition process that, at a minimum, make the situation more palatable for all involved.

Making the Prospects of Promotion Transparent

The first step in creating a humane transition process is having as transparent a system as possible for evaluating one's chances of promotion. Many lawyers asked to leave their firms say they never knew the "out" message was coming. They thought they were well on their way to partnership instead. Having an effective system for ongoing feedback will greatly reduce the possibility that an associate is "blindsided" by the news that a partnership offer won't be made.

If your firm gives effective yearly reviews, your lawyers should have a clear idea of how they are progressing and whether partnership is an option. If this isn't the case in your firm, you should create a process that allows individuals to know where they stand. Start today to implement policies that will ensure your associates regularly get the appropriate feedback, both formal and informal, so they can know whether they need to make any adjustments to stay (or get) on track.

Of course, even under the best and most thorough feedback systems, there are still circumstances that require a separation of a lawyer from his or her firm. So how can you help the departing lawyer to make as smooth a transition as possible? The key is to remember that actions speak louder than words.

Your actions in relaying the news that a transition must occur, while the person is looking for new employment, and after the individual has left your firm all contribute to ensuring that this process is carried out in a compassionate and professional manner.

Relaying the Separation News

In advance of communicating the news to the individual, it's important to plan the conversation so that it will proceed effectively and respectfully. The first element to decide on is who will be involved in the termination meeting. Typically, two partners or a partner and a human resources professional should be in on the discussion with the lawyer.

Another issue is where to have the discussion. It should take place in a location where privacy can occur. This is typically best achieved in a partner's office, the associate's office or a closed conference room.

What about the best time to hold the discussion? Some people suggest Friday afternoons, while others say any day but Friday. Frankly, having the discussion on a Friday can be emotionally difficult for individuals. It is difficult to grasp everything in a termination meeting and then have to wait through the entire weekend before getting clarification on what was said. Given that, I advise that you consider any day but Friday.

Having settled on the "logistics," you must also consider just what should be said during the meeting. Here are the key areas to cover.

  • Get right to the issue by stating something like, "We have some bad news for you." Explain how the decision was made and state that it is final. You will want to explain how you view the separation. Many firms see this not as a "firing," but rather as a mutual decision to no longer continue the employment relationship.
  • Discuss what billable-hour requirements will be expected during the transition period. It's best to give individuals some legal work during this period, but also allow them enough time to search for a new position.
  • Give the lawyer the exact dates of the period during which he or she will continue on the payroll. Describe the circumstances under which extensions of the deadline may be possible.
    Identify individuals in the firm who will serve as references and summarize what they will say.
  • Talk to the lawyer about what job search support the firm can help provide, such as word processing, Internet-based research, faxing, voice mail and e-mail access.
  • Consider providing the individual with career counseling support through outplacement services. An outplacement counselor who understands the legal profession can guide individuals through a career assessment process to help them determine what they want to do next, deal with the mix of emotions that occur, and navigate the job search process generally. A counselor can also keep them in "forward mode," by helping them to make the best use of their time.

At the end of the meeting, provide the individual with a summary of the items discussed so that he or she can review it later.

During and After the Transition Period: More To-Dos

The time frame between when the news is given and the lawyer actually leaves the firm is quite important, too. Handling this period with a positive attitude toward the individual in transition can make all the difference in having the individual leave on good terms. To ensure a smooth transition and continuing positive relationships, be as helpful as possible. Consider providing possible contacts for networking and the like, serving as a reference for the individual, lending an ear when the person wants to bounce ideas off someone, and occasionally checking in to see how things are progressing.

Once the lawyer has found new employment, offer congratulations and best wishes, and ask if he or she will stay in touch. And if you run into this former colleague in the future, be sure to interact positively. Legal communities are small. Many a lawyer let go from his or her firm has later ended up in a position of being a potential client or referral source for their old firm. If the transition process was handled with the highest standards, it is likely that the individual will feel positive about sending business to your firm.

Yes, up or out is still very much alive in the law firm world, but the time and effort your firm puts into handling this process speaks volumes about how it values its employees. Seeking ways to create as positive a process as possible should be a major goal for you.