Lawyers Shouldn’t Be Shocked to Learn They’re Off Partner Path

The mercy rule is often used in Little League baseball games when one team is beating the other by a wide margin, resulting in an umpire “calling” or ending the game early.

In some law firms, there may be an unofficial mercy rule when associates aren’t going to advance through the ranks to partner. Law firm leaders may call the game for an associate for reasons such as low billable hours, poor performance, subpar communication, lack of substantive knowledge, or other unmet expectations.

Sometimes senior associates are shocked to learn the game has been called and they don’t have a path to partnership. Periodically, junior associates are disappointed to find they aren’t meeting the practice group’s expectations after a relatively short stint at the firm.

In some law firms, partners fail to provide clear, consistent, and transparent feedback to associates at all stages of their careers. To avoid surprise and promote equity, law firm leaders should evaluate whether an associate has been given ample opportunities to improve before having a mercy rule conversation.

Here are questions firm leaders should consider about when and how to implement the mercy rule.

How many bites of the apple has the firm given the associate? Everyone makes mistakes. When an associate makes a big mistake or multiple mistakes, colleagues lose trust. It’s easier to move on from the associate than to explain errors, why they mattered, and how to improve. Consider whether this associate has been made aware of their mistakes and received multiple opportunities to improve.

Will the associate be surprised to hear the game has been called? Take a moment to assess whether the associate has been given candid assessments about their performance. Partners can provide feedback through not only performance reviews, but also redlined documents, verbal conversations, debriefs after meetings, court appearances, or depositions, and email exchanges.

Sometimes partners provide clear feedback and associates fail to fully digest that information. If the associate is surprised during the conversation, consider whether there’s anything you or others could have done differently to effectively convey the performance issues more consistently.

Has the firm provided the associate with resources to improve? An associate may be aware that improvement is needed in a particular area, but unsure of the next steps. For example, an associate may know their writing is poor, but doesn’t know the firm provides access to writing coaches.

An associate may know they need to improve presentation skills but is unaware the firm can provide professional development training. These resources are sometimes provided through the firm’s training team, lawyer development team, HR, the DEI team, or practice-group specific offerings.

Has the firm matched the associate with a sponsor? Sometimes an associate may need to be paired with a sponsor who is well-positioned to give them both a clean slate and consistent work. The associate may not have been successful with some partners, but are there others at the firm who are willing to give the associate a second chance, and can consistently keep the associate highly engaged?

Are there factors at play that are beyond the associate’s control that merit a revision to the mercy rule? It’s always difficult to watch your favorite sports team fail to adjust in the midst of a game. Failure to adjust the mercy rule when there are unexpected factors at play, which may be beyond the associate’s control like the economy or pandemic, can lead to involuntary attrition and ultimately cost the firm more money.

Consider whether there are unexpected variables that may impact the associate’s experience at the firm or partners’ perceptions of that associate. If a group is slow and an associate performed poorly on one or two projects, ask whether the associate would have received more chances if the group was flush, and adjust accordingly.

The mercy rule is a reality in law firms, and arguably all places of employment. Ultimately, a leader may call the game for an employee. However, if leaders deliver timely and direct feedback and intentionally provide associates with resources, sponsors, and opportunities to course correct, ultimately these efforts can hopefully lead to equitable outcomes.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Rachel W. Patterson is a senior talent manager for DEI at Orrick Herrington & Sutcliffe. The opinions expressed are those of the author and do not necessarily reflect the views of their employer or its clients.

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