This article describes what these titles mean and how attorneys can achieve them. If you are an associate who plans to stay in the legal industry for a long time, understanding what these titles mean is essential for being prepared for your future and making informed decisions about where to go next.
The "Of Counsel" Title
Of counsel is a position that is in between associates and partners. It is a much more permanent role than being an associate as those who are of counsel have been with the firm for a long time and will probably stay there as well. Associates know that they can and will probably be replaced at any time while those who are of counsel have a more stable position.
However, they are also not partners because they usually do not have enough business or are not willing to work as hard as the role of partners requires. Of course, the quality and rank of the firm dictate how much business is not enough for being a partner and what type of attorneys can become an Of Counsel. An attorney who is of counsel in a major law firm would probably be able to get to the level of partner in a less prestigious firm.
Types of Of Counsel Attorneys
Attorneys Without Business
The more prestigious a law firm is the bigger clients an attorney has to have to be able to make partners. All those attorneys who have been able to stay in such a firm for over a decade and do not have prominent clients that are not asked to leave are made of counsel. Most attorneys in the Of Counsel roles in top law firms would be quickly made partners in other law firms.
Those attorneys who are offered this title can be happy because it provides certain stability that only work associates can dream of while they do not have to work as hard as attorneys in the position of partners.
Attorneys Who Want To Avoid the Pressure That Comes With Partner Position
Being a partner comes with all kinds of responsibilities and pressure not everyone is willing to endure. Partners have to bill more hours than others and are evaluated by different factors, such as the business they have generated, what they do outside of the firm, how much and how well they mentor associates, etc. It is no surprise that not every attorney wants to be subjected to all of this. Many choose to be of counsel because even though they will earn a hundred or more thousands of dollars a year less, they are still earning enough money to have a pretty decent life without having to sacrifice their family life or being constantly under pressure. Some partners even choose to step down from their role and become an Of Counsel because they want more work-life balance or want to avoid unnecessary stress in their life.
Older Lawyers Who Want To Return to Law Firms After Being in a Different Practice Setting
There are some attorneys who were very talented and hard-working when they started out practicing law. They were able to advance in one of the major firms but then decided to go into politics, become a judge, or become general counsel in a huge corporation. After spending years in these different practice settings, these attorneys often want to go back into the legal office environment and if they have had good relationships with their previous firm, they are often offered an of counsel position. They usually do not have to work crazy hours because the firms usually do not have that much work for them but it offers at least some stability.
Old Attorneys Without Enough Energy
People lose energy the older they get. It is no surprise that old attorneys who do not have as much energy as they used to have might want to cut back on their work hours or avoid some of the stress that partners experience. Most of these attorneys have been with their firm for decades, so the firm is more than willing to give them a secure position with less pressure and responsibilities to allow them to enjoy their old age and have enough rest.
Intelligent Attorneys Without People/Sales Skills
Every once in a while law firms find attorneys who are extremely intelligent and smart but do not have the skills needed to generate business and get clients. They are often exceptional in writing documents, quick in digesting and understanding legal issues, and are a great asset to the firm. However, they sometimes lack the people and sales skills that would allow them to get clients and generate business. Attorneys like this are usually very committed to the practice of law and their firm, so having them on the team is an advantage. Firms, therefore, often offer them the title of counsel to keep them.
Talented Attorneys Who Struggle With Consistent Performance
There are also those attorneys who are extremely talented, even brilliant but struggle with being consistent in their work because of something like mental or physical health issues. When they are capable of doing work, they are exceptional and help the firm a lot. However, when they are experiencing issues, they cannot perform at all. Of course, someone like this cannot be given the title of a partner, so law firms give them the title of counsel.
Attorneys From Practice Areas That Are Not the Most Profitable in the Firm
Large law firms often have departments in practice areas that are not that profitable but they have enough clients that it is worth keeping them. Senior attorneys in these practice areas do not have enough business to qualify for partners but the firms want to keep them to have someone who takes care of these clients, so they give them the role of counsel. These are often practice areas, such as bankruptcy, trust and estates, patent prosecution, or trademark law.
Attorneys in Positions Without a Lot of Contact With the Clients
Big law firms sometimes have attorneys in positions in which they deal with internal issues and negotiate conflicts inside the law firm. These could be issues between attorneys and support staff but also issues related to layoffs where employees in these positions are tasked with firing others. They are offered the roles of counsel to help them gain authority within the firm, although these roles are really not much more than clerical work.
Attorneys Who Have Left the Law Practice and Want To Get Back (e.g. Maternity Leave)
Many attorneys, women especially, are extremely hard working but still decide to take prolonged time off from their full-time law practice to start a family or take care of kids. Their work is good and they love it but they still cannot afford to work the crazy hours that someone without a family can. So, they often opt for the title of counsel because it brings stability and money without them having to miss important events in their kids' lives.
Attorneys With Important Interests Outside the Legal Office
There are always some attorneys whose dream was never to make it big in the legal industry. They want to break through into politics or into some similar sector. Being a lawyer is only a way for them to earn money. They need to spend a significant amount of time out of the office, so they need a position where the firm keeps them but they do not have to work long hours. The title of counsel is perfect for this. Firms also do not mind keeping attorneys like this in the Of Counsel role as they are a great representation for their law firm.
The "Non-Equity Partner" Title
The title of non-equity partners is something that is quite new to the legal industry, only being popular for the past several decades. Firms started to notice that not all of their partners were working equally or bringing in the same amount of money, so they started to divide them based on who was profitable and who was not. Those who were in the latter group quickly turned into non-equity partners.
Not every law firm has both equity and non-equity partners but more and more firms are implementing this system. A non-equity partner has less stability than those with the title of counsel because they are on the track of being asked to leave if they do not generate business. They are under the same amount of pressure as equity partners, maybe even under more pressure to perform, while they do not have the stability equity partners and of counsel attorneys have.
Types of Non-Equity Partners
There is not that much difference between those attorneys who get the title of counsel and non-equity partners. Both of these attorneys do not have enough business to have an equity partnership and are paid based on a set salary. However, non-equity partners work to become equity partners while those attorneys of counsel do not aim to change their title.
The non-equity partnership is a stepping stone for many associates on their way to making equity partners. Many non-equity partners are also former equity partners who have slipped and are not fulfilling the business requirements for the equity partnership. This is their chance to start generating more business and if they are not able to do so, they are usually asked to leave.
Non-Equity Partnership As a Stepping Stone
Associates who are working extremely hard, billing thousands of hours a year for many years, and are visibly trying very hard to advance are usually given this law firm title to motivate them to work even harder.
Now, it is not easy to reach this title in a large law firm. Most attorneys never make it to law firm partners regardless of the equity status. However, those who stick it out and are able to get to the non-equity level still have a long way ahead of them. They get a salary of a few hundred thousand dollars a year and a nice office but the expectations and pressure increase rapidly. You now have to generate business that would supply work not only for you but also for junior and senior associates and maybe even other partners. That is not an easy job and not every attorney is capable of it (which is completely fine). It is possible to avoid this if an equity partner has a vast amount of work; however, that does not happen that often.
Many firms do not keep attorneys on the non-equity partnership level for more than a few years. They evaluate their performance every year to see whether they are billing enough hours. If they are not performing well for a longer period of time, they are usually asked to leave.
If an attorney with this title does not get enough business and is asked to leave, they have several options. Most law firm attorneys who do not make it to the partnership level choose to change practice settings and go in-house or they choose to open their own solo legal practice. While it is possible to find success as an in-house counsel; it is a very competitive setting without a ton of positions. So, many attorneys are forced to look elsewhere. Those who choose to open their own practice often find that finding clients for a solo practice is just as difficult (if not more) as generating business as a non-equity partner.
Attorneys can also switch firms and become partners in a smaller firm or in a firm in a smaller market. Large prestigious firms usually have very high requirements for the amount of business they require and many partners who are asked to leave have more than enough business to reach the equity partner level in a different firm. Some, however, choose to lie about how much business they have to get into a better firm, which is never a good idea. These lies will always come to light and once they do, the attorney can forget about their legal career.
"De-Equitized" Partners
An equity partner with insufficient billing hours has insufficient clients. Due to the partner's work or performance issues, they may also be asked to step down to the non-equity level. This is a better option than being fired. However, it can still be very upsetting. It is a way the law firm tells the partner they need to improve, otherwise, they will be asked to leave.
The "Equity Partner" Title
An equity partner is an attorney who is among the best in their legal firm. They are fulfilling all the requirements the firm has set for their senior partners. That means they are able to generate enough business to bill an incredible number of hours and provide work for their associates. They have earned respect from other people in the law firm and have a great reputation among attorneys and clients. Their career is their life and all of the energy and effort they have put into it is showing in their success.
However, every law firm has its own standard for equity partnership and the more prestigious a firm is, the more difficult it is to become an equity partner. What is enough in one firm would not even be up for consideration in another.
Types of Equity Partners
Law firms partners with equity status have all the characteristics of counsel attorneys and non-equity partners are lacking. They show their commitment to the practice of law daily, they do not struggle with generating business, they have enough clients, and they are motivated to always do their best without excuses.
They have incredible people skills that help them with gaining and maintaining great relationships with clients but they are also wonderful with other attorneys. They provide great mentorship and also have the necessary leadership skills to be in the position of a law firm partner.
Most law firms require a buy-in from every equity partner to be able to give them the title. They become part owners of the firm, so they have to invest in it. This is usually settled through the firm or a bank loaning the attorney the money.
An important note here is that the type of attorney who can make an equity partner is something completely different in different firms. Different firms require a different level of work ethic and more importantly different amounts of business. In some firms, having a business in the value of a few hundred thousand dollars a year is enough, while in others they will not consider you unless it is several million dollars.
The main difference between an equity partnership agreement and other law firm titles is that an equity partner automatically becomes part of the business side of running a law firm. It is not enough that they are among the best in the legal profession, they also have to have the skills to handle management responsibilities. They decide what associates to hire, who to fire, they evaluate attorneys and vote on who is making partners, where to open offices, or whether offices need to be closed together with the logistics of that. Another important aspect of being a managing partner is creating budgets and plans for the firm, making sure that the image of the firm is spotless, keeping the firm afloat when it is in trouble, and also assuming liability when something happens. They probably do not have to do all of these things at once but they are responsible for some of them.
Not every attorney is capable of handling this or has the skills to do so even if they fulfill the standard requirements for the law firm's partners. Partners also have to be able to maintain their business and activity every year and pass through the evaluation every firm does on their partners. Some firms value business more than anything when deciding partners' compensation or their eligibility for equity status. Other firms have different systems for evaluating their partners but the amount of business and clients are often highly regarded.
Conclusions
The law firm hierarchy is full of positions for senior lawyers. Everyone can find an opportunity that fits their motivation, commitment, skills, and what they want out of their legal career. However, the most important aspect of achieving any of the law firm titles or finding success in the law office is generating and keeping enough business.
