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Ask A Mentor: How Do I Relay Shortcomings To Associates?

By Michael S. Cohen
December 6, 2022
Law360

Ask A Mentor: How Do I Relay Shortcomings To Associates?

By Michael S. Cohen
December 6, 2022
Law360

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In this installment, Michael Cohen, partner at Duane Morris, discusses how the disciplinary process and performance reviews for associates can best be conducted to provide meaningful guidance and avoid the risk of discrimination claims.

Q: What are some effective ways to highlight performance shortcomings during an associate's annual review while providing constructive feedback? —Partner at Mid-Law firm

Typically, associates become law firm partners based on a myriad of reasons including, but certainly not limited to, strong work product, business generation potential, efficiency and work ethic. Interestingly, one of the factors almost never considered is the associate's management skills. So, what happens? Law firms promote individuals to partnership without any regard to how that individual will or will not be able to manage those who report to them. Even worse, once the new partners assume their responsibilities, most firms do not take meaningful steps actually to educate them about the whys and hows of supervising others. The reality is that lawyers are phenomenally adept at managing cases, managing deals and managing projects. Where many attorneys struggle, however, is when it comes to managing people. Most notably and noticeably, performance management remains a massive deficiency. While law firms certainly are staggeringly different in many ways from other firms, successful management of any team requires effective communication to, and discipline of, its problematic associates.

Why Documenting Discipline Matters

Many law firm leaders who have not been educated think, when confronted with the disciplinary process, our associates are at-will. Doesn't that mean we can terminate any associate for any reason, no reason, good reason, bad reason, with or without notice, as long as the reason is not discriminatory or violative of public policy? Answer: Sort of. Most employment is at-will, which means an employer can, legally, discharge an associate for any or no reason, as long as the reason is not unlawful or against public policy.

However, there are some very real risks in not following the disciplinary process in the large majority of cases.

Fairness to the Associate

There should, most times, be two overriding goals for the disciplinary process: Make the associate aware that there is a problem; and give the associate an opportunity to improve. In most cases, the objective should be to have the associate cure the deficiency so they can succeed. If a law firm employer simply terminates associates without providing such an opportunity, not only will that associate become angered — note: associates who do not like you are more likely to sue you — but the firm's resources will be wasted.

Cost to the Firm

The cost of not engaging in performance management takes many forms. First, there is the obvious cost of an associate who is not performing to standard. That individual is costing the firm money due to their lack of productivity. If an associate is supposed to bill 1,950 hours per year, but by June is on pace only to meet 70% of that goal, a failure to talk to the associate about that deficiency certainly can cost the firm money. If a partner does not provide the associate with notice of the problem, but rather ignores it hoping it will improve on its own, which never happens, that partner is costing the firm revenue. In addition, a firm that terminates individuals without first providing meaningful and comprehensive notice likely will develop a reputation in the legal community of being unfair. This reputation will, without question, have a significant impact on the firm's ability to:

• Retain associates, causing a revolving door of associates who must be trained and retrained; and

• Recruit associates, resulting in the employer either settling for second-rate associates or paying first-rate associates more than it otherwise might have to.

These days as much as ever, given the realities of the great resignation, firms cannot afford to have this reputation in the legal world. They also can't afford the risk of exposure to litigation. A partner who inconsistently applies the firm's disciplinary process eventually and invariably will treat similarly situated associates differently. Why does this matter? Discrimination claims. But, says the imprudent law firm leader, who should know better, if my partner's reason for doing what they did is not discriminatory, why do I have to worry?

Comparators

Assume that two associates engage in the same misconduct — both consistently and egregiously fail to record and release time, without excuse. Assume now that the first associate is a white male, under 40 years of age, who does not have a disability and is heterosexual. Now, assume the second associate is a Hispanic female, over 40 years of age, who has a disability and is gay. If your law firm partner provides the first associate with an informal warning and gives the second associate a final warning, that very well may be perceived not only by that associate, but by eight reasonable people sitting in a jury box, as evidence of bias.

What Disciplinary Documents Should Look Like

Notwithstanding its obvious importance, law firm partners come up with a number of articulations, or excuses, for why they do not put finger to keyboard or pen to paper to let their associates know how things are going.

Two that are heard frequently: "I am too busy and don't have time"; and "I didn't want to put anything down in writing that may hurt the firm."

With respect to the first excuse, it is just that: an excuse, and a lame one at that. All partners are busy. In reality, all people are busy.

If a partner says that they are too busy to take the time to properly create a disciplinary warning, ask that same leader how much time they think will be involved in preparing for, and participation in, their deposition in the discrimination claim brought by the now former associate who did not receive proper disciplinary notices before the associate's termination.

"I don't have time" is not now, never was and never will be a viable articulation of not providing an associate the assistance that is needed.

The second reason many partners provide for not preparing a disciplinary trail is that they did not know what the document should look like and, therefore, were concerned that putting something in writing may hurt the firm. This is understandable.

Many partners do not know how appropriately and respectfully to create a document explaining to an associate the problem with the work performance or conduct. There are steps partners can and should follow to give meaningful and helpful guidance.

Five core elements should be present in each disciplinary notice a partner prepares:

1. Expectations the associate has not met;

2. Specific failings of the associate in terms of performance and behavior;

3. Prior counseling the associate has received;

4. Expectations of the associate going forward; and

5. Consequence of not meeting those expectations.

Below is a brief description of each of the elements.

Expectations Not Being Met

What does the firm expect of this associate that has not been done?

For example, if an associate continually violates the attendance policy, make clear to the associate that they have received a copy of the firm's handbook or policy relating to attendance that, in relevant part, explains to the associate what is expected in terms of attendance. If the partner is not certain how most effectively to explain the expectation, quote the actual policy with which compliance is expected.

Specific Failings

What has the associate done, in terms of performance or behavior, that has not met the firm's expectations? This really is the critical portion of the disciplinary notice as it is the portion that will explain to the associate what has gone wrong.

Not surprisingly, this also is the part of the notice with which partners have the most difficulty. The overriding premise to the drafters is to focus on behaviors and outcome — do not focus on things like what the partner may perceive as the reason for the behavior or the intent of the associate in not meeting expectations.

Prior Counseling and Discipline

What prior discipline or counseling has the associate received? Be sure to include not only actions that have resulted in formal disciplinary action, but also informal counseling sessions.

Expectations Going Forward

What is expected of this associate as they continue as an associate of the firm? Be certain in this section of the disciplinary notice to include time frames for the improvement. Generally, an associate should be given more time to correct performance deficiencies — which could take at least 30, 60 or 90 days to improve — than to correct conduct or behavioral problems, which typically need to be corrected yesterday.

Consequences of Not Meeting Expectations

What will happen to the associate if they do not satisfy the expectation criteria in the time permitted for the improvement? In this last section of the warning, the firm's message must be clear as to what faces the associate who fails to comply with its dictates.

If an associate is at the step of informal counseling, the memo should make clear that failure to meet expectations will result in formal counseling.

If, for example, the associate already has reached the formal discipline stage, the warning should explain that if improvement does not occur, the associate will be subject to further disciplinary action, up to and including discharge.

Once the associate has reached the final warning stage, the warning must make clear that any further infraction will result in termination.

With respect to the final warning language, the warning should not equivocate and the partner must be ready to take action based on the language. If the disciplinary notice includes the "you will be terminated" language and the partner does not follow through, the disciplinary process will lose credibility and that partner will lose the respect of his or her associates.

The documenting discipline process, if done correctly, takes time; however, it absolutely is time that must be spent. It is critical not only because of fairness considerations with regard to associates, but also so that the firm appears justified, and thus is more protected in litigation, in the event termination is necessary.

Reprinted with permission of Law360.