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Thursday, February 28, 2008

Law-Firm Associates Should Unionize

We_can_do_itLaw-firm associates should unionize. I don’t know why they haven’t already, except that they are, on the whole, rather gutless.

Think about it. Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners.

Now, I know nothing about labor law. Is there a legal barrier here? Or are associates just holding themselves back? There would certainly be some professional responsibility issues with an all-out strike, as client interests could be threatened. But I think associates could flex considerable collective-bargaining muscle without creating an ethics problem.

Let me note that when I say associates are underpaid, I do not mean that they are impoverished and we should feel sorry for them. But, compared to the amount that the partners bill clients for associate hours, the portion associates receive is trifling. Why should they surrender more than three-quarters of their billable rate to pay for the partners’ rainmaking services and office overhead?

I am struck by the irony that associates are trained and employed to play hardball in their litigation work and corporate deals, yet, when it comes to dealing with the partnership over pay, associates seem to take what they are given, unless they feel so slighted they move to another firm. That’s my observation, having been one.

One last point: I am sure many associates would claim they are uninterested in unionization since, as they see it, they will be a partner someday. But, of course, if everyone thinks that, most are wrong.

Posted by Eric E. Johnson on February 28, 2008 at 04:35 PM in Workplace Law | Permalink

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Prawfs Blawg ran a very interesting posting on Feb. 28, 2008 entitled Law-Firm Associates Should Unionize. It has generated a number of comments. One commentator even cited my article entitled Attorney Labor Unions. I thought I would respond to some [Read More]

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Comments

Isn't a big problem with unionization, from a practical standpoint, the quick turnover in large law firms? They aren't quite McDonald's, but how many associates remain for even 3 years?

Posted by: Ben | Feb 28, 2008 5:04:27 PM

Many firms would contend that associates are "supervisors" of non-lawyer staff, and therefore are not protected by the NLRA. This contention would probably be wrong in most firms, I think, but it might work in some situations.

The more basic answer, I think, that very few lawyers (especially among the ones who are at big firms) have the cooperative all-for-one, one-for-all mindset that is part of union organizing.

Posted by: Sam Heldman | Feb 28, 2008 5:11:25 PM

Underpaid? Even if you extrapolate their wages to an hourly wage (which does show how deceptive those 6 figure starting salaries are) most associates still make pretty damn good money compared to manual labor.

And there is an easy solution for those who are upset about sacrificing a percentage of their hourly rate for "rainmaking" and "overhead": go solo. If rainmaking and overhead are so easy and not worth the "cut" the firm takes, then the associates should be just fine doing those on their own and being compensated from their solo hourly rates.

Posted by: Anon | Feb 28, 2008 5:33:38 PM

Ironically enough, one of the few cases involving private law firm attorneys seeking to form a union involved a union-side labor law firm. In Kennedy, Schwartz & Cure, P.C., 2-RC-22718 (2003), the employer contended that the attorneys should be excluded from the proposed bargaining unit (consisting of associates and support staff) because of potential conflicts of interest that might arise out of conflicts between the union seeking to represent the attorneys (the UAW) and the firm's own union clients. The Regional Director rejected that argument. The employees voted in favor of the union and (if I recall correctly) eventually agreed to an initial contract with the firm. However, the firm split up shortly thereafter (for reasons not directly related to the internal unionization issue).

For a discussion of other issues concerning attorney unions, including exclusions based on supervisory, managerial or confidential employee status, see Mitchell H. Rubenstein, Attorney Labor Unions, NYLS Legal Studies Research Paper Series, No. 06/07-18.

Posted by: eric | Feb 28, 2008 5:57:09 PM

Anon- I do not dispute that associates make great money compared to workers generally, much less manual laborers. But that's a false comparison. If associates make less, manual laborers won't make more, it is partners who will make more. The pertinent question is, why shouldn't associates demand more of the partners money? I have actually heard partners say absurd things, when talking about associate compensation, such as, "It's not all about money." Well, of course it is. Partners are, of course, not so easily dismissive of their own income.

With regard to your argument, "here is an easy solution for those who are upset about sacrificing a percentage of their hourly rate for "rainmaking" and "overhead": go solo" -- you might just as well ask, "If partners don't want to pay associates the extra sums they could obtain from collective bargaining, then they should go without associates." Neither argument has merit. Both partners and associates need each other. The question is how they should share the firm's revenue.

Let me point out that I am not "upset" about associate pay. I'm a law professor. In fact, far from sticking up for associates, the point of my post is to take a jab at them. My hypothesis is that associates don't take advantage of collective bargaining because they suffer from collective cowardice. And in so far as that is the case, associates get paid exactly what they deserve.

Posted by: Eric E. Johnson | Feb 28, 2008 6:14:22 PM

I think partners should unionize, too. They put in decades of back-breaking labor that ruins their family lives; they are treated like dirt by clients; and they make a mere fraction of what investment bankers make. If they just banded together they could really take on The Man.

Posted by: Orin Kerr | Feb 28, 2008 7:30:49 PM

1. Collective action (no pun intended) problem - by self-selection nobody who is a big-firm associate is inclined to play Norma Rae ("Gidget Joins the Union"), and even there were, there is a collective action problem. Not enough payoff for any single person to do the organizing. And who has the time? It's not like the factory whistle blows at 4:45 p.m. and then you stand outside the gate and pass out leaflets.

2. What does the union want? No layoffs on the third shift? Time in grade pay? Shop rules? An end to merit increases? Time and a half? The closest analog I can think of is the baseball players' union, which Don Fehr will tell you is a strange one, because the one thing it DOESN'T negotiate (because its members don't want it to) is pay.

3. What happens when the associate becomes a partner? Is there a separate bargaining unit for salaried partners? Of counsel?

4. Maybe conditions just aren't bad enough to spur the proletariat to action.

Posted by: Jeff Lipshaw | Feb 28, 2008 8:50:07 PM

Orin's facetiousness aside, and in response to Jeff's 3rd question, the legal reason partners could not form a union is that they would be excluded as managers, supervisors, and/or confidential employees. While the Sidley Austin case raises the possibility that "partners in name only" with no real management voice might not be considered "employers" for some purposes, even "PINOs" would likely be considered supervisors and/or confidential employees for NLRA purposes.

I do think Jeff's first 2 points best explain the failure to see any union activity among law firm associates. It's partly ideological, partly collective action problem, partly uncertainty or lack of consensus over what terms and conditions an associates' union could effectively bargain over.

Still, it's fun to think of a good name for a law firm associates' union. I propose the Amalgamated Document Reviewers, Cite Checkers, Lit-Bag Carriers, and Bootlickers Union.

Posted by: eric | Feb 29, 2008 7:35:31 AM

Sam Heldman and both Erics make good posts above. I'll add the following.

There is a fairly significant tradition of lawyers in the *public* sector organizing into unions under various public sector labor laws, and there are some interesting cases in the public sector as to whether certain attorneys are supervisors, managers, or even confidential employees (the typical answer is that they aren't, per se).

The difference in the private sector might be partly explained by additional greed and cowardice, but I would stress that the cowardice would be much more justified. Employers firing workers who try to organize unions is much more common in the private sector than the private (yes, it's illegal in both, but see the entirely trivial penalties/remedies in the private sector).

Finally, I don't understand the argument that the only folks that should be in unions are folks that are lower-paid. Of course we have the example of professional atheletes, actors, and others who are in unions. Unions negotiate over a whole range of issues that aren't compensation: just-cause discipline/discharge rules, promotion rules, hours of work, health & safety rules (OK, maybe that's not a big one for associates, but still. . . .), etc., etc. Heck, unions of federal employees (including unions of lawyers) have contracts that are well over a hundred pages long, and federal sector unions are legally prohibited from negotiating compensation. It's getting a voice in the workplace.

Along those lines, Orin, in some European countries, folks who are fairly high-up in the corporate hierarchy can form unions (a friend of mine was a VP in a big multinational bank based in Paris, and she was in a union of other VPs). Again, it's about having an institutional voice for your concerns.

Posted by: Joseph Slater | Feb 29, 2008 10:09:35 AM

Oops: should be "Employers firing workers for organizing unions is much more common in the private sector than in the *public* sector."

Posted by: Joseph Slater | Feb 29, 2008 10:11:00 AM

Perhaps lawyers simply don't want to work in the environment where good associates cannot be rewarded for excellent work and lazy morons cannot be fired for messing up one assignment after another. If my law firm decided to unionize, I would have quit on a spot, and so would most of the good associates. I don't want to be dumped into a faceless pool of "human resources" where an employee's the only distinguishing feature is seniority. No way.

Posted by: anon | Feb 29, 2008 12:13:17 PM

"Perhaps lawyers simply don't want to work in the environment where good associates cannot be rewarded for excellent work and lazy morons cannot be fired for messing up one assignment after another."

I'm sure they don't, but that's not responsive to the question about why they wouldn't want to be represented by unions.

Posted by: Joseph Slater | Feb 29, 2008 12:59:26 PM

Actually (and cynically), I think "anon's" comment is responsive to the question about why law firm associates don't want to be represented by union, but just not in the way "anon" intended. The comment (like some others in this thread) reflects the fact that most law firm associates, like far too many other people, have no real clue as to what unions actually do for workers, and instead think about unions (if at all) in ridiculously stereotypical fashion. Because of this impaired understanding, such people mistakenly believe that union representation could not possibly benefit them personally, leading them to conclude that they don't want union representation. "Mr. Block" would have made an excellent law firm associate.

Posted by: eric | Feb 29, 2008 7:18:28 PM

The comment (like some others in this thread) reflects the fact that most law firm associates, like far too many other people, have no real clue as to what unions actually do for workers, and instead think about unions (if at all) in ridiculously stereotypical fashion. Because of this impaired understanding, such people mistakenly believe that union representation could not possibly benefit them personally, leading them to conclude that they don't want union representation,

Is that another way of saying, "The comment reflects the views of union opponents, not union supporters"? Or rather is the idea that unions can indeed be bad for the public, but the question here is what is good for employees rather than good as a matter of public policy more generally?

Posted by: Orin Kerr | Mar 2, 2008 11:09:19 PM

Dear [Clinton appointee on the Southern District of New York],

I write to implore you to find that "Biglaw Associate" be considered an "employee" under the NLRA. Let me tell you about myself. I am currently a law student at a tier 1 law school and will work at an AmLaw 100 law firm this summer. In preparation for this associateship, I now regularly wear argyle sweaters and driving loafers. For lunch, I enjoy the turkey and brie sandwich with cranberry demi-glaze from Cosi, which I can buy for a mere $8. For dinner, I usually stop at Whole Foods where I can purchase a tray of pre-made sushi for $12. This way, I ensure that I won't gain weight and that my seersucker pants will still fit properly.

This summer, I plan to use my $3100/week salary to upgrade from a Tag Heuer watch to either an Omega Seamaster or a Rolex Submariner (automatic movement, of course). I really like the Submariner, but they are just so common among law firm associates today! Assuming I receive a full-time offer, my first year I will be paid more than the following people: (1) my parents; (2) every other union member in the country with the exception of Jon Stewart; and (3) you. So, I implore you to liberally construe the NLRA (I'm sure you'll have no problem doing so) and be sure that my rights are vindicated!

Sincerely,

Pretentious Law Student

Posted by: Anon | Mar 3, 2008 10:00:45 AM

Is that another way of saying, "The comment reflects the views of union opponents, not union supporters"? Or rather is the idea that unions can indeed be bad for the public, but the question here is what is good for employees rather than good as a matter of public policy more generally?

No.

Posted by: eric | Mar 3, 2008 10:13:33 PM

Whatever happened to hard work and paying your dues? If your getting paid 160,000 a year you should be working twice as hard as someone making 80K/year. SO of course u are going to be overworked or feel like it. but that's just the way it is ... some poeple work 50 hours/wk just to make 80-100K. Get used to it!!!! And throw in the benefits, free meals, etc. it is still an honestly good deal.

Posted by: Dale | Mar 14, 2009 3:22:33 PM

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