Evaluation and Compensation of Partnersby Joel A. Rose
The decision as to who gets what is probably the most crucial decision made in a firm today. Dissatisfaction with the decision-making process and result may be the single greatest factor in the decision of a lawyer to leave their firm. Failure to appreciate the process is responsible for a major part of this dissatisfaction. Further, goals, objectives and perhaps culture, as described in this article, can change so that a firm may ultimately become something different then that which a lawyer originally joined.
The following are some observations on the process which deals with the question in two parts, first the standards of evaluation, and second the compensation decisions based upon these standards.
Implicit in the definition of “evaluate” which is defined as “to fix the value of” or “to judge” is the understanding that it is one’s value to the firm that one is evaluating.
One must be able to define a firm’s goals, strategies and “culture” to fix the value of a partner to his or her firm. Stated another way, if a firm has as its goal to obtain as much business as it can, it will give a higher evaluation in this regard to partners who account for this business than those who don=t. If growth is not a major goal, but say, fraternalism is, than partners who best contribute to that goal will receive a higher evaluation.
Many compensation problems are really a lawyer speaking out against what he or she views to be the standards of evaluation, i.e., they disagree with the firm=s goals, its culture and strategies against which their performance may rate poorly. In many cases, their evaluation would be much better in another environment.
Thus, the first step in the evaluation process is the determination of firm goals (or objectives), and those factors which the firm views as essential attributes toward meeting these goals. These should be clearly understood and articulated so that compensation decisions, which are in whole or in part based on this evaluation, can be explained in a manner that reasonable people can understand the results reached. This is not to say that there will not be disagreements over evaluation even if the evaluative factors are understood. The most unfortunate situations are those where one partner=s evaluation of himself clearly differs from the evaluation of him or by his or her partners, using the same standards of evaluation. Frustration, resentment, discontent and ultimately separation from the firm are the likely results. This result cannot be helped. Below are examples of various factors against which a lawyer may be evaluated:
Since the whole purpose of the evaluation process has been to make the compensation decision, the firm must decide what weight, if any, to give each factor of evaluation.
It is at this stage that the critical difference between firms using formula approaches and those on some subjective system manifests itself. To be on a formula system, requires not only that a firm establish its goals and objectives, and articulate those attributes in its partners which it sees as contributing to those goals and objectives, it also requires the attaching of a relative value to them up front which everybody knows, can comment on, and to the extent they desire, can conform to. The anticipated results of using a formula approach in whole or in part can be as follows:
1. The compensation decision is already made since it requires only a mathematical calculation and it can be reasonably anticipated that much of the discontent is over after having reflected itself in the valuation and weighing process.
2. It focuses the firm on the setting of its goals and standards and their evaluation, and removes from the subjective that which can be quantified.
3. It makes clear to people joining the firm what behavior is expected of them, how they will be evaluated, and thus, what their chances of success or failure within the firm will be.
4. It tends to reinforce the behavior pattern of everyone within the firm and those joining the firm, i.e., it attracts people who will be happy and content to work within the values and standards clearly articulated, thus matching in many cases, personalities and the firm better.
The question of who should make the subjective evaluation decisions is incredibly difficult to deal with. The problem becomes harder, the larger the firm becomes, since it becomes more and more difficult to know what everyone is doing. Communication, both formal and informal, becomes essential so that every partner being evaluated against a subjective standard has equal opportunity to have his or her case heard. Neither of the extreme possibilities here is likely to work in terms of the compensation decision, i.e., one person evaluating everyone, or everyone evaluating everyone. If a subjective standard is to be used in regards to the compensation of one or more partners, care must be taken to see that the evaluation is made by someone (or a group of partners) in a position to know.
One must always be sensitive to the fact that it is a finite pie being divided, i.e., whatever I get, you don=t. Compensation decisions based on subjective factors require the philosopher-king approach on the part of those making them. They must truly be made in such a way that most, if not all partners will perceive them as being in the best interest of the firm. If they are not so made and so perceived, considerable dissatisfaction will result and one will find oneself perpetually fiddling with the question of who is best able to judge. This becomes a vital question, since when subjective criteria are used, no two people will see them in quite the same way. The same is true when objective criteria such as new business, are weighed in a subjective manner.
As a firm grows, or in the case of smaller firms, its personnel changes, its values and goals may change, and consequently it may come to value different attributes in its partners. This may cause some people who were very happy with the old values to become unhappy with the new ones. One should view the decision-making process as a flexible one, not as etched in stone; always remembering that for each year the decision is made without disastrous results, we have accomplished some sort of a miracle.
Effect of Contingent Fees:
The big problem presented by the presence of large contingent fee matters, particularly if they are not recurring from year-to-year, is that for a law firm keeping its books and records on a cash basis method of accounting, the costs incurred in contingent fee matters will be charged to a different accounting period than the income received. This is the same problem a growing firm faces, i.e., a firm may earn a substantial accrual profit in a given year, which is reflected in increased accounts receivable and work-in-process with little cash profit because of the increase in business and the costs attendant thereto. The difference in time period from a compensation viewpoint is irrelevant so long as the partners of the firm are the same and share in the same relationships when costs are incurred as when the income is received. All too often this is not the case, however, it is suggested that some matching of income and expense may be necessary in the interest of fairness.
To the extent some accrual method of accounting is used to match income and expenses, how should an unusual profit on a major case be credited to the varying interests of the partners in the firm and over what time period. Some alternatives are:
1. All excess profit should be treated as profit in the year received, to be allocated by the firm in accordance with its standard procedures.
2. It should be allocated to the year when the case originates.
3. It should be allocated over the years the matter was being handled in some form or other.
One inevitable factor should never be lost sight of. . . it is the capital of the firm which provides the stakes in the contingent fee gamble. It would, to paraphrase a famous judge in a famous case, “be unseemly indeed to attribute the fruit to a different tree than that upon which it grew.”
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