For many law firm partnerships, the default solution in dealing with underproductive partners is to fire them.  Presumably, the reason firms immediately choose the “nuclear option” is not because it is particularly attractive.  Rather, they simply don’t have the confidence that any other option will work.  This is unfortunate because they pass up a potentially valuable strategy — the retooling of their underproductive partners into a different area of practice.

When partners are judged to be underproductive as a working attorney, there are only three possible reasons.  The first is that the partner is lazy.  Realistically, it is pretty rare that a fully functioning attorney wakes up one day and decides that he or she doesn’t want to work hard anymore.  The second is that they are being influenced by some outside force that takes precedence over their interest in performing legal work.  It could be a mid-life crisis, drug or alcohol abuse or health or emotional problems.  Although more common than laziness, personal issues are usually fairly easy to spot, and can be addressed through professional assistance.  But, the third and the most common reason is that the area of law in which the partner has traditionally practiced is not sufficiently busy to keep them fully productive.

Retooling can be a surprisingly attractive option for firms because it is both humane (in comparison to firing partners or slashing their compensation) and, in many cases, has a realistic chance for success.  To be successful, however, firms cannot simply tell their problem people to “go become a corporate lawyer.”  It doesn’t work that way.  Like most other initiatives, a good retooling program must be managed well.

Selecting Partners for Retooling
There are several basic and quite logical criteria for selecting partners who have a realistic chance of successfully retooling:

  • The firm must make the judgment that the lack of productivity is related to underperformance as a working attorney, i.e., low billable hours due to a lack of work or low collected revenues caused by discounted billing rates in a marginally profitable practice.  We have seen situations where low productivity is the result of other issues, and a partner’s change of practice area revived productivity.  However, the change is typically temporary, and after a short period of time the partner reverts to prior performance levels.  As a general statement, if a partner’s low revenue generation is self-inflicted (laziness, mid-life crisis, etc.), it is unlikely that retooling will solve the problem.
  • The attorney must be working in a practice area that is in decline, has become a commodity subject to extreme rate pressure, or is an anomaly that conflicts with the firm’s primary practices (such as one divorce lawyer in a 200-attorney business firm).  Retooling requires a major effort by the attorney and a significant investment by the firm.  It should not be used to cover temporary slow periods.
  • The firm must be reasonably confident that there is an area of practice that presents a sustained need and for which an attorney can be retrained.  It makes little sense to move a partner out of the frying pan and into the fire by retooling the person in a practice area that is also in decline, or in which there is insufficient work.  While this may appear insultingly obvious, moving partners from one dying practice to another is surprisingly common.
  • Finally, the attorney must be willing (indeed, enthusiastic about the opportunity) to prepare to practice in a new area.  Like horses, you can’t make them drink and trying to do so will not only waste time, but also sour your partnership on the viability of the concept of retooling.

The Retooling Process
The first step in the retooling process is for the practice group chair or a group of experienced partners in the area to develop an outline of knowledge that must be acquired.  This can be visualized as the table of contents of a definitive book on the practice.  In cases where the targeted practice is new to the firm or the partners working in the practice are too busy (or disinterested) to devote time to be involved in the retooling, the firm may consider engaging a law professor or an attorney experienced in the area who has retired from practice.

There are five basic stages in learning a new practice area.  They mirror the way associates learn to practice law but are accelerated by the partners’ overall knowledge and self-confidence.  The stages are not necessarily sequential and can be initiated simultaneously:

1.  Learning the Law.  The basic underpinning of any practice is the laws under which it operates.  Typically, CLE programs and bar seminars are available that can provide much of this information, but some learning will require time in the library.

2.  Acquiring the Skills.  Most practices involve more than just knowledge.  They involve skills gained through practice, experience and repetition.  In some cases, the skills may rival knowledge of the law for importance (for instance, becoming a trial lawyer or a labor negotiator).  In other cases, the skills may be limited and generic to the practice of law.  Obviously, retraining into a high-skill practice requires time and the opportunity to work with experienced partners.

3.  Collateral Knowledge.  In many areas of practice it is necessary to have knowledge of disciplines beyond the practice of law.  An environmental lawyer must have a working knowledge of specific engineering issues.  A corporate attorney must understand financial issues, and a tax attorney has to know accounting.  In the normal course, attorneys may pick up this knowledge through observation and experience.  In a retooling, the process must be more structured.

4.  Procedural Knowledge.  Almost all practices involve aspects that require an understanding of both formal and informal procedures.  This is particularly true in administrative practices where the ritual may be far different than what is prescribed in written procedures.  In some cases, procedural knowledge involves creating personal relationships with court clerks or bankruptcy trustees.  In others, it is as simple as reading procedural rules.  In almost all cases, learning processes require having an experienced guide available.

5.  Client Knowledge.  In most practices there are core clients, and having knowledge of their internal operations, preferences, industry positioning and similar information may be as important to the practice as knowing the law.  Client knowledge should be the easiest to attain involving a simple orientation but, embarrassingly, it is a topic that the profession addresses amazingly poorly in general.  To acquire client knowledge, simply require some orientation by partners in the practice area.

Making Retooling Successful
To be successful, retooling requires commitment on the part of both the firm and the partner.  From the firm’s perspective, retooling requires an investment of the partner’s non-billable time and appropriate compensation to support the partner during the retooling.  Even more importantly, the firm has to recognize that the retooling process must be managed with specific objectives and timelines.  Learning a new practice is not particularly enjoyable for most partners.  Even the threat of termination is not always enough to keep many partners motivated and on track, so firms typically provide them with a coach to supervise their retooling.

From the partner’s perspective, it must be clear that retooling is the primary professional goal for the immediate future.  This means that retooling efforts can’t be dropped when there is a momentary influx of billable work in their current practice.  Both the partner and the entire partnership must accept that the partner’s non-billable time spent retooling will limit the amount of time spent on billable projects.

Retooling does work.  There are hundreds — or perhaps thousands — of attorneys who have changed practices at least once in their careers.  In fact, according to the ABA Futures Committee, it is anticipated that attorneys entering practice today will change practices an average of five times during their career.

Typically, attorneys who found it necessary to move into a new practice have had to be sufficiently entrepreneurial to risk the time necessary to move into a new area.  With firm support, the process becomes easier, more widely accepted and enjoys a higher probability of success.   And, it makes a lot more sense than immediately pushing the nuclear button.