Once upon a time, it was big news when a lawyer switched firms

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Your Voice Once upon a time, it was big news when a lawyer switched firms

By Norm Tabler

November 23, 2021, 1:28 pm CST

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Norm Tabler.

It’s an understatement to say that law firms have changed in the 50 years since I was first admitted to the bar. One of those changes was the demise, somewhere along the way, of what lawyers in my firm once called the Lemcke test.

I’m sure that no other firm called it the Lemcke test. Most firms probably never gave it a name. Nevertheless, this principle—whether named or not—was an important factor in determining the future of many lawyers.

But first, the name. The Midwestern firm I joined (and would be associated with for most of my career) was one of the state’s so-called Big Three, each of them twice the size of other firms in the state. My firm was located in the state’s largest city, and like most of the state’s prominent law firms, situated above a bank.

Directly across the street was a building that had seen better days. Modest retail operations occupied its ground floor. The only store I specifically recall was a hat cleaner, catering to the few diehards still wearing fedoras or homburgs. “We Clean & Block Hats!,” the sign proclaimed in neon script. (Do hat-cleaning shops still exist?)

That building was called the Lemcke Building. The small and solo law practices that occupied the floors above the ground floor retailers were invariably of less prestige than the firms perched above banks.

Near the end of each year, my firm’s compensation committee made decisions about the compensation of all the firm’s lawyers for the upcoming year, including promotions of associates to partner. These decisions involved many factors, both objective and subjective. But as I knew even before my brief tenure on the committee, no factor was more important than the financial consideration. After all, a law firm is a business and the relationship among its lawyers is primarily financial.

During the run-up to these year-end deliberations, it was common for some lawyers to make known their expectation of an increase in compensation or promotion or both. Rarely did a lawyer explicitly threaten to leave if expectations were not met, but an implicit threat was sometimes present.

It was in this context, half a century ago, that one of the firm’s most-respected (and hard-nosed) partners articulated the concept of the Lemcke test. Pointing out the window to the Lemcke Building and barely suppressing a sneer, he declared that a lawyer who believes himself (it was always himself back then) underpaid must ask whether he could earn more if he moved to the Lemcke Building.

The Lemcke Building was a metaphor for the alternative of a smaller firm. The test was whether the lawyer would be more successful in a smaller firm. Why a smaller firm? Well, it couldn’t be a larger firm because in our state there were no firms larger than the Big Three.

As you may have surmised, the test was as rhetorical as it was metaphoric. The answer to the question posed by the Lemcke test was virtually always no. Who really believed one of our lawyers would be better off in a smaller firm?

As smug and self-satisfied as the message was, the Lemcke test held some truth. If a lawyer wanted to practice the kind of law and level of clients we served, the alternatives were limited. True, the other two of the Big Three firms were probably as attractive as ours, but by unspoken gentlemen’s agreement, none of the three had ever taken (or accepted) a lawyer from one of the other two, and no one could conceive of that ever happening. What’s more, major law firms hired new lawyers—those recently completing law school or judicial clerkships—not experienced lawyers.

Whether it held any truth or not, the Lemcke test accurately reflected the culture of our firm. In those days, our lawyers—even those disappointed with compensation or status—generally believed that they could not fare better anywhere else.

Note that the foregoing paragraphs are written in the past tense. That’s because the Lemcke test, and the culture it reflected, are only distant memories. Indeed, I may be the only one who recalls the term. For decades now, no knowledgable person has believed that a big firm lawyer’s options are limited to moving to a smaller firm or, indeed, that smaller means lesser. First, consider what it means to be big. In practical terms, there is always a bigger firm. It may be headquartered in another state or in London, for that matter. But it’s out there; it has or will soon have an office in our state; and it’s an alternative for an unhappy lawyer to consider.

Second and more fundamentally, who says bigger is necessarily better? Countless smaller firms outrank larger firms in prestige and income. It’s particularly true of firms that concentrate in specialties rather than engage in general practice, but it applies to general practice firms as well.

Third, large law firms no longer limit their hiring to new lawyers. It’s common for a firm’s growth plan to include acquiring seasoned lawyers or even entire law departments from other firms. And large firms are obvious targets for poaching. I long ago stopped trying to count the number of lawyers who have moved from one to another of the former Big Three.

In truth, there has been no Big Three for decades. Some of the formerly smaller firms have merged into regional, national or even international firms and are now larger than the former Big Three—which themselves, have grown beyond recognition, primarily through mergers with firms headquartered outside our state.

Are these changes good or bad? Both. Lawyers in a firm like mine have more alternatives than in the old days, and they recognize it. Those options test and perhaps weaken their loyalty. But the firm itself also has more alternatives. It may bring in a seasoned lawyer or even an entire practice group from the outside, posing something of a threat to those already on board. In that sense, the firm’s loyalty to its own is tested.

The most significant effect of the changes is on the culture of a firm. In the old days, when virtually every lawyer in the firm was hired directly out of law school or a clerkship and had never worked anywhere else, there was a definable culture, unique to the firm. That’s no longer the case.

I still maintain an office at the firm, but as a retired partner, I’m happily blind and deaf to the firm’s compensation deliberations. I’m certain, however, they no longer include reference to the Lemcke Building.

Norm Tabler is a retired lawyer in Indianapolis, where his practice focused on health law. He serves on the editorial advisory boards of the ABA Health Law Section’s The Health Lawyer; the ABA Senior Lawyers Division’s Voice of Experience e-newsletter (for which he writes the column “Adventures in the Law”); and the Indiana State Bar Association’s Res Gestae (for which he writes the column “Annals of the Law”). He writes and records a monthly podcast, The Lighter Side of Health Law, for the American Health Law Association’s Health Law Weekly.

ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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