Small firm hiring deserves greater scrutiny
As a law professor, one of the most rewarding parts of my job is helping students navigate their burgeoning legal careers and find positions that bring professional satisfaction and success. I am always delighted when students appear in my office with an offer in hand or a story about an amazing case that they worked on over the summer.
Correspondingly, one of the worst parts of my job is witnessing the disappointment, embarrassment and uncertainty that students face when a hoped-for offer doesn’t arrive, a job doesn’t work out, or something goes wrong at an internship or summer placement.
While my students have found professional success in a wide variety of settings—large law firms, small firms, nonprofits, government agencies, courts, etc.—I have been highly troubled by the number of students who have been subjected to hiring and employment practices at small firms that I would describe as unethical at best and deceptive and exploitative at worst.
Here are just a few examples from my 11 years as a professor at law schools in three states (with superficial details changed to protect the privacy of the students involved).
• A student who, after working for two summers at a small firm, was offered a “three-phase employment plan,” in which the firm offered to (1) pay her a (very) low salary for her first three months, (2) the same salary for the next three months on the condition that she generate an equivalent amount of revenue or pay back the difference, and then (3) stop paying her a salary from the sixth month onward but charge her a fee to use the firm’s printer. The hiring partner told her that she should plan to have developed her own book of business by that point.
• A small firm that hired multiple summer associates with the promise that everyone would receive offers of permanent employment at the end of the summer. After putting in long hours for the next three months, every summer associate except the hiring partner’s son and a prominent potential client’s daughter were told that they would not be receiving the offers of which they had been assured.
• A student who received an offer from a small firm that wanted him to open a branch office in another town completely on his own. The firm offered to pay him $40,000per year and give him a stack of law books that it had purchased from a recent library closure but noted that he would have to pay for his own insurance and his own subscription to online legal research service Westlaw. When the student pushed back, the firm agreed to raise the offer to $60,000 per year and promised that, eventually, he would earn back some amount of the additional revenue that he generated at a percentage to be negotiated later.
In addition to other such troubling examples, I have frequently witnessed 2Ls and 3Ls performing significant amounts of unpaid or low-paid work at small firms during the semester. These students sometimes struggle to keep up with their classes and the demands of their supervising attorneys.
Many of those students, moreover, never receive offers from those firms and are left scrambling to find other permanent employment near graduation. Meanwhile, my sense is that these firms see no problem with such outcomes and instead commend themselves for having given students an opportunity to gain experience.
In some of these situations, the attorneys involved may have been overwhelmed by hefty workloads or truly miscalculated the hiring and supervisory capacities of their small firms. They may also have been out of touch with the current legal market and reasonable compensation ranges.
In others, I think that such firms have purposely exploited law students, extracting considerable amounts of work from them while dangling the prospect of long-term employment that they know they will never be able to offer. Finding a law student to intern is indeed a cheaper option than hiring another attorney, paralegal or assistant.
I am sympathetic to the unique workload and economic challenges faced by small firms. I am also aware that such firms can—and very often do—offer law students opportunities that larger firms cannot: opportunities to perform more significant legal work earlier in their careers.
I have had scores of law students find immensely satisfying employment at small firms and even start their own. Additionally, local small firm attorneys are often some of the most supportive and engaged alums that law schools have.
But I also think that the lack of transparency surrounding small firm hiring increases the risk of unsavory employment practices—a risk that law schools, the bar and small firms themselves should work to reduce.
Unlike large firms, which typically compensate associates in a given region similarly and whose hiring and compensation practices frequently find exposure on sites like Above the Law, small firms vary enormously and are often black boxes with respect to compensation. Law students understandably struggle to determine whether an offer from a small firm is a fair one and often don’t yet have the experience to know when a term of employment is unusual or objectionable.
The common issues with large firms are well known and widely discussed: grueling hours, difficult partners and high attrition, particularly among women and people of color. I worry, however, that in our profession’s very laudable efforts to improve the workplace at big firms, small firms have largely escaped scrutiny.
Worse, the attention on big firms seems to have created a mythology in the minds of many law students that working for large firms necessarily entails high compensation in exchange for terrible hours and poor treatment, whereas small firms are their gentler, more family-friendly—though lower-paying—alternatives. Experienced members of our profession know that to be a false dichotomy, but law students may not.
To combat these issues, law schools have to offer students closer guidance in contemplating job offers from small firms. They should keep track of which firms engage in dubious employment practices and caution students away from them. Law schools also have to teach law students how to do due diligence before accepting a job. Schools should encourage students to research how other small firms in the area are compensating attorneys doing similar work, check the disciplinary history of the lawyers at the firm, and ask tactful but thoughtful questions about the firm’s finances.
State bars should take a more active role in monitoring the employment practices of small firms and whether such firms are providing adequate supervision of law student interns. State bars should also provide more CLE opportunities designed to ensure that small firm attorneys are up to date on employment laws, ethical hiring standards and current norms in compensation.
Finally, small firms have to engage in careful self-reflection before hiring law students. They should not hire law students whom they cannot adequately supervise or fairly compensate. Additionally, they should be as transparent and upfront as possible with students about the possibility of future employment.
While having law student interns is undoubtedly helpful, particularly if a firm is struggling under the weight of a daunting caseload or financial uncertainty, the risks inherent in small firm practice should not be borne by some of the most vulnerable members of our profession.
Tracy Hresko Pearl is professor at the University of Oklahoma College of Law. She researches and writes in the areas of law and technology, criminal procedure and torts. Before becoming an academic, she was an associate at Hogan Lovells in Washington, D.C., and a law clerk for judges in the U.S. District Court for the Eastern District of Virginia and the 10th U.S. Circuit Court of Appeals at Denver.
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