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Should You Sue or Start Fresh When You Start a Law Firm?

by Carolyn Elefant on November 2, 2011 · 8 comments

in Leaving A Firm, Solo Inspiration

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If her website bio is any indication, immigration lawyer Kisshia Simmons-Grant is a solo with a bright future.

With top tier undergraduate and law school degrees, a prior position in the prestigious Attorney General Honor’s program, tenure as Assistant Chief Counsel with the Department of Homeland Security trying immigration cases and proficiency in Spanish Simmons-Grant has the killer combination of experience that clients find valuable and a white chip credentials that give big law firms the confidence to send cases her way – maybe even outsource their immigration work to her entirely. Moreover, as a woman and African-American, Simmons Grant, if she chooses, can apply for woman and minority small business status which could make her even more appealing to large corporations looking for immigration assistance or to large firms. (Unfortunately, Simmons-Grant is just a solo, she couldn’t join the National Association of Minority and Women Owned Law Firms, but I digress…)

Yet in spite of the promise that lies ahead, Simmons-Grant can’t yet completely escape her past. It’s not that Simmons-Grant has been sued by her former employer for allegedly taking a matter that belonged to the firm or that she’s stuck working part-time at a previous position because she can’t yet afford to solo full time. Instead, as noted by AmLaw Daily, Simmons-Grant has sued her former employer, big-law firm Quinn Emmanuel for race-based discrimination that took place while Simmons-Grant worked as a staff attorney for the firm.

Among other things, Simmons-Grant contends that the firm gave her less desirable work than her white colleagues and eventually retaliated against her when she complained about working with another attorney whom she feared. Was it discrimination? Commenting at Above the Law, Elie Mystal suggests that firms like Quinn Emmanuel discriminate against all colors but green, and that staff attorneys across the board often receive the brunt of poor treatment. To the extent that there’s discrimination, it may lie in the fact that larger numbers of African-Americans wind up as staff attorneys to begin with.

Simmons-Grant isn’t the first new solo to launch a practice with a lawsuit. A few months back, Greg Berry, now principal attorney at the Law Offices of Gregory Berry brought suit against his former firm, Kawowitz Benson. Berry claims that he was terminated after complaining that the pedestrian assignments that the firm gave him were beneath his “superior legal mind.”

While Berry’s suit is somewhat narcissistic, Simmons-Grant’s case is tougher to call. Was she treated less favorably than her white colleagues? Maybe so. But with her stellar resume, Simmons-Grant was probably far more well-qualified than her peers. Firm management may have recognized — even before Simmons-Grant did herself — that she wasn’t going to be satisfied for long in a lowly position. Thus, though Simmons-Grant’s complaints about undesirable assignments may have been well-founded, the firm had no reason to accommodate or invest in someone whom it believed might not stick around for the long haul.

Certainly, a lawyer forced out of a firm as a result of heinous and systemic injustice is right to consider pursuing the matter. After all, we lawyers are not simply supposed to fight against injustice, but also police ourselves.  So if lawyers don’t bring firms’ wrongdoing to the forefront, who will?

On the other hand, getting fired is a blow to the ego (been there, done that) – and can make a spurned lawyer to make a veritable constitutional case out of the ordinary inequities of the workaday world.   So sometimes, when law firms treat associates differently, or don’t live up to promises,  it’s situational rather than sinister.  After all, law firms are profit-driven entities and lawyers are busy. As such, they have a short fuse and little patience to spend on lawyers like Greg Berry who think they know better, or like Simmons-Grant who are likely in a job for the short haul or on moms and dads who need to leave at three to pick up kids at the bus stop.

Of course, situation doesn’t explain all of the disparities.  I’ll be the first to admit that some of the disparate treatment at  law firms is motivated by, or stems from race or gender-based considerations. For all of the progress that’s been made, many law firms will be, forever and always, old-boy networks that reward and promote their own.

Still, even assuming discriminatory or unlawful action, is a lawsuit the best way to go for a new solo?  I don’t think so.  In the short run, suing a law firm while getting a practice off the ground can hurt a new solo’s chance for success. Instead of spending time marketing and networking, Berry, Simmons-Grant and others who choose the same path will waste time on non-revenue generating depositions and endless scheduling conferences. Moreover, any opportunity for referrals for large firms will evaporate since the firm may question your judgment.  Fair? Of course not. But no one, least of all big law wants to take a chance when referring a trusted client or colleague to a new solo.  And while I’ve modified my position somewhat, I still generally believe that it’s rarely a good idea to burn bridges.

More importantly, there’s a bigger picture consideration as well. Specifically, do you want to waste your time fighting injustice in a system that’s dying anyway? Or as I put the question once before, Do you want to rescue big law or run from it?

I say no. To quote poet Maya Angelou’s inaugural poem from Bill Clinton, Simmons-Grant, Greg Berry, the 10,000-some associates laid off since 2009 — all of us solos and wandering lawyers stand on the pulse of a great day. Rather than cling to the wreckage behind us, we must seize the opportunity that lays ahead:

Take it into the palms of your hands.
Mold it into the shape of your most
Private need. Sculpt it into
The image of your most public self.
Lift up your hearts
Each new hour holds new chances
For new beginnings.

  • guest

    I like your blog a lot, but why the obsession with “being a solo”.  I focus on being a lawyer.  After a few years, this lawyer may hire associates, or join up with a partner.  She may also lateral into a larger firm and bring her book of business with her if she feels that would be beneficial.  Quinn Emmanuel is famous for accepting such laterals.

    A lawyer should focus on mastering legal skills and building a book of business.  Legal business relationships are transitory. If you have the above 2 things, everything else falls into place.  All of the time, individual lawyers, and small groups, leave big firms to go to other big firms, or set up their own small operation.  As long as they have skills and a book of business, everything else is conversation.

    Why would big firms send business to this lawyer. She now competes with them. Wouldn’t they just have one of their own associates do it.  She needs to chase business directly from the clients; not from her competitor law firms. 

  • guest

    I like your blog a lot, but why the obsession with “being a solo”.  I focus on being a lawyer.  After a few years, this lawyer may hire associates, or join up with a partner.  She may also lateral into a larger firm and bring her book of business with her if she feels that would be beneficial.  Quinn Emmanuel is famous for accepting such laterals.

    A lawyer should focus on mastering legal skills and building a book of business.  Legal business relationships are transitory. If you have the above 2 things, everything else falls into place.  All of the time, individual lawyers, and small groups, leave big firms to go to other big firms, or set up their own small operation.  As long as they have skills and a book of business, everything else is conversation.

    Why would big firms send business to this lawyer. She now competes with them. Wouldn’t they just have one of their own associates do it.  She needs to chase business directly from the clients; not from her competitor law firms. 

  • Anonymous

    You’re right; there are many career paths that these lawyers may take down the road. I obsess about solos and small firms because that’s my “beat” (tho I should add that I use the term solo very loosely; not necessarily to mean a firm of one but rather to refer to the start up spirit
    BTW big firms do refer cases from time to time. I’ve gotten business from large firms where there was a conflict or the matter wad too small or outside the scope of their practice. Most AmLaw 200 firms don’t do immigration but may represent corporate clients with immigration needs. They would jump at the chance to refer those clients to someone with this woman’s credentials

  • Anonymous

    You’re right; there are many career paths that these lawyers may take down the road. I obsess about solos and small firms because that’s my “beat” (tho I should add that I use the term solo very loosely; not necessarily to mean a firm of one but rather to refer to the start up spirit
    BTW big firms do refer cases from time to time. I’ve gotten business from large firms where there was a conflict or the matter wad too small or outside the scope of their practice. Most AmLaw 200 firms don’t do immigration but may represent corporate clients with immigration needs. They would jump at the chance to refer those clients to someone with this woman’s credentials

  • http://www.dearnlaw.com Alicia Dearn

    As an employment lawyer, I can tell you that the question about whether to move ahead or dwell exists with every plaintiff, no matter what profession they are in.  No wrongful termination lawsuit should be taken lightly.  No litigation should be entered into blithely.  By far, most things are not worth reliving in a hideous lawsuit.

    But sometimes you just need to stand up for yourself and for what’s right.  If Simmons-Grant’s suit is righteous, then I say, good for her for not being scared of QE.  They weren’t going to send her referrals anyway, and the time spent in litigation may not be impacting her bottom line as much as you think.  Only she knows the answer to that.

    Getting away from Big Law is usually a blessing.  But it can oftentimes leave wounds.  It’s nice to see someone fight back occasionally, even though we all know it won’t change a darn thing at those firms.

  • Carolyn Elefant

    You raise a good point about standing up for oneself – and in many of these cases against firms, plaintiffs are winning. That Simmons-Grant found a law firm to represent her further reinforces the credibility of her case.  Though it is important to speak out against injustice, I also think that success can be the best revenge. But you’re right – in the Simmons-Grant case it’s a tough call with good arguments on both sides of whether to sue or not.

  • Anonymous

     Wow, that was a very profound article – thank you! Being a British citizen I can not wholly pass judgment on what should be done in this particular issue regarding Simmons-Grant. I really respect the notion of starting up a solo firm, as it does require a lot of dedication and perseverance – especially considering the economic downturn we are facing. I’m not sure though whether the disparities in the workload given was racially aggravated – especially as the culture itself is rushed and continues only if deadlines are met. Nevertheless, if she feels that it has been racially-derived, then there is a case for it :) But thanks again for the article.

  • Thomas_helms

    Thanks for the interesting article. Every case is different and I can’t pass judgment on the people mentioned in your article. I think that most attorneys are better off focusing their time, energy and money on the future rather than the past. I have seen so many lawyers try to rectify past employment injustices and, in doing so, stay mired in the past. I’d bet on the future and move on.

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