Questions about Counsel Position


Posted on May 5, 2010 at 4:05 PM

Questions have been raised about the use of the counsel position as a promotion for associate lawyers including whether or not these promotions are good for the lawyer, firm and client?

Some recently promoted counsel are David Lam of Clifford Chance, Gerhard Radtke of Davis Polk, Jenny Liu of DLA Piper, Karen Yan of Latham & Watkins and Nicholas Song of Vinson & Elkins. Firms believe that they can use the counsel position to recognize an associate's outstanding performance and contribution to the firm.

Jay Cuclis, a member of Vinson & Elkins, said, "In our firm, counsel promotion is the management committee's recognition of specific senior associates who have distinguished themselves with expertise in a certain area of the law, and have demonstrated excellence in practicing law. It's a compliment to their skill and capability." So does this mean that being promoted to counsel can be a part of the partner track or is it a final destination within a firm?

Every firm classifies the career potential and responsibilities of the counsel role differently. In some cases it may be used as a stepping-stone to partnership and in others it may be an alternative to partnership.

At Vinson & Elkins, any counsel could be elevated to partner at any time. Cuclis said, "Counsel is not necessarily an intervening step in the partner promotion process, but rather a designation for certain associates to play a greater role."

On the other hand, Lovells uses the position as part of the promotion ladder for people who are partnership material but are not quite ready for the role that comes with being partner. Jamie Barr, Lovells head of corporate in Asia, has stated that clients like dealing with counsel because it shows they are dealing with someone more senior than an associate. He also sees the counsel position as a good intermediate step for top talent who are on track for partnership. "A partner's job is very different from that of an associate. It involves more management, business development and client management." Jamie Barr believes that the position helps ease the change.

At other firms, counsel can be a title for lawyers who want more flexibility with work schedules than partnership offers. It can be used for associates that are not interested in the partner track as well as senior lawyers coming to a firm from the public sector or from a corporation.

Economic incentives also play a role in the firm promoting associates to counsel. Many times the pressure to remain highly profitable is a good reason to promote associates to counsel positions, as hourly rates go up comparatively. "When the pressure for business origination is high, firms will want to have more people actively involved in business development. The counsel role allows more senior lawyers to build a book of business," said Frazer Xia, the founder and managing director of China Legal Career. Xia also said that profits per partner can become diluted too quickly if there is a large increase in the number of partners, so when firms are not comfortable about promoting someone to partner immediately, the can appoint they lawyer to counsel first.

As the prospects for 2010 continue to get better, one must expect that the number of counsel in firms will grow proportionally with that of associates and partners. In some cases this will be good for the lawyer, firm and client; in others, it may not be.

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