Industry Resources

When Should You Be 'In The Market'?

When I initially approach an attorney (especially those in the New York market who are bombarded by hundreds of recruiter calls), I frequently get a terse response: “Thanks for thinking of me, but I am not in the market.”

That is the wrong response.

As a career professional, you not only have to be on top of your job responsibilities, but actively manage your career. Managing your career requires not just executing one set of job responsibilities, it means actively monitoring the workplace for clues and signals, and keeping an eye on the market.

That is, a “job” merely requires producing the best possible work product that you can so that you open internal advancement opportunities. Managing a career entails much more effort.

The realities of today’s law firm structure and the legal industry at large present unique circumstances that require constant monitoring. Issues of managerial incompetence, the “up or out” model of firms, external market factors, agency problems, and office politics all present problems to the passive associate. Don’t get caught off guard.

In some cases, there may be telltale signs that can help you gauge conditions that might necessitate a lateral move. In other instances there are not, and being caught off guard then burdens you with a pressing job search, while still attending to all of your daily responsibilities.

Incompetence / Malfeasance

It is often said that the best attorneys make the worst managers. There are numerous instances where partners have driven their firms into the ground either through shady behavior, totalitarian rule, or pure self-interest. Regular ATL readers know of the criminal trial of former executives of failed law firm Dewey & LeBoeuf or how overexpansion and underintegration killed Bingham. Be wary of your firm’s growth through merger strategies and keep an ear to the ground for internal rumblings and partner defections.


1. External disruption

There are external market factors that are beyond the control of anyone within a firm. They tend to disrupt the status quo, for better or worse. The wise attorney keeps his or her eye on them. Gaston Kroub accurately anticipated that the then-pending Supreme Court decision in Alice Corp. v. CLS Bank International, with the viability of software patents on the line, could have potentially devastating disruptive effects on larger IP boutiques. Given his Biglaw experience, he doubted whether the larger firms had even begun to analyze the potential disruptive impact of the decision on their patent practices.

Despite the fact that the Supreme Court’s ruling in the Alice case was sort of a non-answer to the question whether software can be patented under U.S. law, it has had a dramatic effect on the validity of so-called software patents and business-method patents, with a tidal wave of patent invalidation in its wake. The result was one of many factors that caused an exodus from and reduction of headcount at larger IP boutiques.

Didn’t see it coming in time? Unfortunately, active career management has just became a lot more difficult because the market suddenly became flooded with similarly situated associates looking for new homes.

2. Internal disruption

Keeping an eye on partner defections is important because these partners may know or anticipate something that you don’t. That said, do you know whether you are working for a partner who may imminently depart the firm? Is that partner aware of your interest in working for him/her wherever he/she may land? Do you have a high-profile relationship with that partner’s clients?

I have experienced two different scenarios where this has been problematic for the associate. In the first instance, the associate was at a firm for less than a year when his partner decided to head to a less prestigious firm. The associate, with little choice but to move because all of his matters flowed through that partner, was brought in tow. This was great for the partner’s career advancement, but not so great for the associate’s advancement. Another instance is where an associate interviewed for a position, secured the job, and the partner the associate assumed he would be working for was out the door before he arrived.

Are you prepared for something like that? Regularly keeping abreast of market opportunities is one way to have your bases covered.

Office Politics

It is naïve to think that you will rise above office politics. I was one of those guys. I have worked at government and quasi-government entities, large corporations, and at small private companies. What was the common denominator? When there are two or more people in the room, there are office politics.

What do office politics look like at a law firm? A good example would be: given two equally client-facing attorneys, an objectively less-talented associate is handed choice litigation projects because of their special relationship(s) with a partner or two. Where two attorneys are not equally client-facing, it is likely in the interest of the firm to groom the more client-facing associate with a slightly weaker pedigree. Regardless, if you are not getting your hands on projects that advance your skills and ensure that you are a viable candidate, you need to find a better position.

The political landscape constantly shifts. That associate that you can’t stand working alongside may suddenly be promoted to a position of authority making your life miserable. That junior partner that you love to work for may not be a favored son / daughter of the more senior partners. Choice matters may disappear as that partner is marginalized or forced to hoard work to stay alive.

Agency Problems

An agency problem is the problem of motivating one party (the agent) to act on behalf of another (the principal).

Simply put, the partners that you work for do not always act in the best interest of the firm, they do what is best for themselves. They may hoard projects that would groom you for partnership at your firm. Conversely, once an associate gets into the partnership ranks they may shirk business development responsibilities for as long as possible if they face few consequences. The smooth well-compensated ride that partner is taking is great for him or her. However, that means less billable hours for you. Your skillset atrophies and your marketability diminishes.

The Funnel

In a previous ATL career advice article, Michael Allen, Managing Principal at Lateral Link, stated, “Contrary to nearly every other job market, the more senior you get as an associate, the less attractive you are to other firms as a lateral. Because your lateral value has diminishing returns the more senior you get…”

Not everyone at your firm is going to make partner. Your assessment of your partnership potential may need to come earlier rather than later depending on what your practice. (Litigators have extremely short shelf-lives these days; transactions attorneys have significantly more time.) Before you get sucked into that forever senior associate or counsel role at your prestigious BigLaw firm, other than scoring a government position, your options are to look in-house or at other firms. Both government roles and in-house roles generally tend to take a rather long time to secure. You need to be pro-actively learning about each of these options. A good recruiter can keep you informed.

Conclusion: To Be In the Market, or Not to be in the Market

You can keep your head down, focus on your responsibilities, and work hard, ignoring everything else around you. If you are racing to pay down student loans and have decided to leave the law as soon as possible, that is fine. However, if you are still considering a career in the law, I strongly urge you to consider your responses when a well-positioned recruiter comes a-calling. You must choose. But choose wisely.

If you are looking to benchmark your firm’s performance, discuss market conditions, or explore the possibility of a lateral move, my colleagues and I would be happy chat with you.