Lawyering and its discontented

In Pakistani litigation, the concept of the penniless prentice practitioner is a constant. To such a person, so too is that of the prosperous penny-pinching partner at a top law firm. This person’s intuitive understanding of why more of those pennies don’t end up in their powerless pockets is just that: they are powerless.

Law schools produce far more students than employers are willing to absorb. And the regulator does little to ensure that the numbers aren’t bloated by those who don’t even have the necessary skills expected of them. So, many work extended periods for no money at all. Many who do still don’t make minimum wage. The small silver-spooned sliver – right at the top – is fortunate to start at about fifty thousand rupees a month, with fewer still able and free to supplement this with some kind of side-income.

But few employers are candid enough to admit that they don’t pay because nothing compels them to. Instead, there are reasons such as the Argument From Transgenerational Trauma: we endured the same, so suck it up. Hunger, in all senses of the word, is a lost virtue. Another argument is that you are being paid; you just don’t know it. You are being paid in the one currency that is impervious to even depreciation: Learning (™). And finally, there is the easiest of them all: we have no money to pay you.

Some practices may well not be able to afford all the people they still insist on ‘hiring’. But the fancier firms can’t say this with a straight face. No matter their justifications, the fresh-faced first-year hears: “It’s my money and I don’t need to give it to you”.

A few days ago, Feisal Naqvi Sahab wrote an op-ed in these pages titled, ‘Lawyering and its Discontents’. The piece is interesting because it seeks to provide an ‘alternative perspective’ – at least to the extent of the fancier firms. (And while such firms are a minority, their dynamics extend outwards, as with the Cravath System in the US.) But it isn’t just descriptive: it also begins by disagreeing with the idea that “senior lawyers act unfairly when it comes to paying junior lawyers”. Thus, implicit within it is a case for what is Fair.

Allow me to reproduce the meat of this perspective, as I understand it. (1) In the Pakistani litigation market, most payments are made lump-sum. (2) ‘Therefore’ what the associate gains, the partner loses. (3) Partners like money. (4) Partners like free time. (5) Partners are willing to trade some of their money for free time. (6) If an associate can free up a partner's time, partners are willing to pay them for this. (7) In order to do so, associates must produce ‘work of a sufficiently high standard’. (8) Across jurisdictions, this is not a function of time: senior counsel must train them. (9) In being trained, they are extracting value from the firm (implicit). (10) For about two years, the value that they extract is greater than the value they inject. (11) Therefore, for these two years, the fresh associate is a “net loss”. (12) Consequently, what they are paid is also ‘fair’ (implicit).

There are other ideas in the piece, but we have already heard those. What seems to be new is also what is doing much of the heavy lifting: that until year two, most associates are a net loss. So, let’s consider this.

But first, a word on fairness. Fair compensation, in this analysis, is not measured by the amount of work that the associate puts in: it is measured only by the amount of time it saves the partner. Enough has, otherwise, been written to critique such estimations of value. Let’s instead consider this idea from within its own sterilised framework: the utilitarian calculus.

You are a partner in a law firm. As a partner, you are the face of the firm, and it is your face that brings in the clients. One such client brings you a case. It’s a simple enough matter, but a judge is more likely to grant relief if yours is the face he sees. So, you will be arguing the case.

You charge them a million rupees, lump-sum. This amount is supposed to cover everything: the drafting, the printing, the arguing in court, and so on. This is so whether you have to spend ten hours on the case or a hundred. On your own, you might spend about twenty hours on this case. So, in agreeing to take the case, you are pricing your time at fifty thousand rupees an hour (ignore the overheads for now).

For the sake of simplicity, let’s say your only employee is a first-year associate. Let’s say they’ve been around for about six months (closer to day zero than the two-year checkpoint). You give the associate several tasks that would have taken you about three hours. You spend about fifteen minutes explaining the task.

When you return the next morning, the task is complete (it happened to take the associate about twelve hours, but that doesn’t matter here). You spend about twenty-five minutes reviewing the task. You call in the associate and spend five minutes asking them to fix certain things. They take another two hours to do this. You spend another fifteen minutes reviewing it.

So, you would have spent twenty hours on the whole thing. Between the arguing and your own preparation, you put in seventeen hours. You also spent an hour on explanation and review. The fantastically unremarkable associate worked fourteen hours, but they still saved you two. In taking the case, you priced an hour of your time at fifty thousand rupees. Thus, the associate has provided you with a hundred thousand rupees in value.

To keep things simple, let’s say the associate works on four cases just like this in a month. By the time they are to be paid, they have generated four hundred thousand rupees in value. So, what does it take for them to be a net loss? Well, they must be paid more than that. But even the most fortunate fifty-thousand-rupee earner is receiving only 12.25 per cent of that. You pocket the rest. This, in the common understanding, is a net gain.

In the piece in question, the writer also cautions us against comparisons to the US – where fresh lawyers make plenty (despite being equally useless). There, this is fair because the associates “pay for themselves”. But are they not doing so here too? Is the only difference not that, there, the associate’s labour is put down to paper? And that, here, the employer doesn’t need to acknowledge that it exists? If this person is a net loss in the present – and prospects of retention are so low – then what is a rational firm investing in at all?

Of course, the conclusion only follows if the assumptions are realistic. The partner may argue that it takes longer to explain and review. Or that they also put in time to ‘train’ you otherwise. Indeed, an associate may just as well argue that even these assumptions are too generous. They will work on more than four briefs a month, even as their salary is fixed. Also, many tasks they are given don’t require much intellect: they are simply a function of time. They may also object that the senior associate does most of the ‘training’ and review (with the senior associate’s time being less valuable than the partner’s). They may wonder if all of this is not just the Argument for Payment in Learning, with extra steps. Why else would no discussion of a figure be necessary, unless any compensation is fair compensation?

The young associate’s indignation stems from an experiential agreement with this math. For some practices, it may well be wrong. To the extent that the partner’s personal abilities affect the numbers, someone like Feisal Sahab is a prime candidate for a deviation from the norm. But this is about how the argument applies across the board. And for it to apply as a rule, the numbers must be off by a factor of over eight. If you, as an employer, think you can demonstrate such an error, and wish to convince your young associates, then run the numbers for them. Make this part of their Learning.

You don’t have to, of course. But this, I submit, is what it will take. And if all of this seems like too much work, fear not. There’s probably a hungry first-year out there who will do it for you for free.

The writer is a lawyer. He tweets/posts @brainmasalaar and can be reached at: salaar.khan@columbia.edu