Should Lawyers Unionize?

January 8, 2014

A recent article in Salon argues that the reason unionization is so low (and, consequently, wages are so low) in the US is that white collar Americans insist on thinking of themselves as management, even when they are in no way in charge of their own work. This is nowhere more true than in the profession of law.

Eric McClelland writes that “working class’ should be defined by your relationship to your employer, not whether you perform physical labor” and “unless you own the business, you’re working class.” I agree. Given that the vast majority of lawyers in the United States aren’t partners, why shouldn’t they unionize, especially in the face of ballooning law school debt and lower lawyer salaries? This is particularly true in the case of contract lawyers—that growing class trapped in windowless cubicles churning out document review for large firms while never making anywhere near large firm salaries.

First we have to determine whether lawyers even can unionize. Unions in the United States, while on the verge of extinction, are nonetheless heavily regulated by federal law. Not every class of worker can form a union. For example, supervisors cannot unionize. But who’s a supervisor? Lawyers supervise all kinds of people—interns, secretaries, other, more junior associates. But they only meet the test of “supervisor” if they direct these people using “independent judgment”—whatever that means—and have some authority to discipline them. So, the answer, as is so often true in law, is “it depends.” For a more comprehensive analysis, see Mitchell H. Rubenstein’s article on the subject. Thus, while it is likely that many attorneys are unable, under our current statutes, to unionize, the majority of attorneys are probably eligible under this test (how many contract lawyers and associates actually have the ability to recommend discipline for anyone below them?).

In fact, many lawyers are unionized, including lawyers at Legal Services NYC, who are represented by UAW Local 2320. You may remember that they recently went on strike. Although various media outlets warned that the entire New York legal services system would implode with attorneys on strike, nothing so dramatic happened. Supervisors (who, remember, aren’t allowed to be part of a union) took over caseloads and, where necessary, striking lawyers continued working with current clients, simply declining to accept new ones while on strike.

So, if some or even most non-partner lawyers can unionize, why don’t they? I come back, again, to the question of contract lawyers. Contract lawyering used to be, essentially, legal temping. You could do some per diem work for a law firm without having to sign away your entire life, and the law firm could outsource some of their more low-level legal work to people without having to hire a new full-time person at full-time salary. These days, however, contract lawyers are becoming more and more permanent fixtures. There simply aren’t enough fancy Big Law gigs to go around, or even fancy small law or public interest law gigs. And contract lawyers are more necessary than ever, with the growing demands of ever more onerous document discovery. These days large law firms are propped up in large part by a huge invisible army of contract lawyers. Towards the end of my summer associateship at Paul Weiss, I remember asking someone whether Paul Weiss hired contract lawyers. After all, I’d heard of such an animal, but never seen one. It turns out, they had entire invisible floors of such lawyers with their own elevator bank so no “real” Paul Weiss lawyers ever saw them. Entire floors of an enormous mid-town law firm could easily house hundreds of contract lawyers, or “staff attorneys,” who work at a prestigious firm and do prestigious work without the prestigious pay or resumé boost.

Contract workers would then appear to be perfect candidates for unionization—they’re paid substantially less than other lawyers for equally (if not more) necessary work, they’re essentially invisible and are likely trying desperately to pay off six-digit student loans. While there may have been a time when contract lawyers were too short-term and transient to unionize, these days many contract workers remain for years on automatically renewing three-month contracts, or simply forgo a contract entirely and receive annual W2s, just like full-time employees.

But, as the Salon article points out, unionization isn’t only for the downtrodden or ignored. What about Big Firm lawyers, or even the skads of lawyers working at small and medium-sized firms? There’s a degree to which, quite honestly, Big Law lawyers don’t need to unionize, as Big Law has gone out of its way to try and making salaries transparent, widely publicizing first-year salaries and giving across-the-board bonuses based on hours billed, rather than on a particular partner’s evaluation. This already puts them light-years ahead of mid-sized firms, where salaries are often extremely opaque, and where bonus systems can seem almost entirely arbitrary. There’s also a degree to which small and mid-sized firms artificially lower associate salaries, by looking down on “poaching” of associates. That is, firms punish other firms (socially or politically) for hiring away associates, meaning associates find themselves stuck in a particular firm and unable to move laterally within their field. This, obviously, gives firms an incentive to artificially lower salaries (why pay an associate more when you know she has nowhere to go in her field of expertise?). This is certainly an issue unions could help address by making salaries more transparent and standardized within a given firm, as well as potentially across firms.

At a (declining) average of  $30/hour, contract lawyers are making a little under $60,000/year if they don’t work overtime. That’s about the same as the starting salary of public interest lawyers, as well as the median starting salary of fresh law school graduates across the board. That’s likely not what most people had in mind when they signed their student loan paperwork, agreeing to pay back some $1,500/month in loans for the next 25 years. While you could certainly argue that some market correction is required—people need to stop going to law school in such large numbers—the actual market for lawyers hasn’t dried up. While there are more law graduates than there are law jobs on the market, there are nonetheless more jobs on the market each year. The problem is that a lot of them don’t pay well enough to keep young law graduates in the black on their student loans, or even to pay rent or raise a family in a medium-sized city. Partners, however, who are the law firm executives, are raking in, on average, almost $700,000 a year, with more for equity partners (and, of course, substantially more for Big Firm partners). This has partners earning more than ten times what first year attorneys and contract lawyers are making. And those partners couldn’t function for a day without them.

So, gripe all you want about how the US is overflowing with too many lawyers and too many law grads, but the legal system is its own little bubble of inequality, with many sitting out in the cold and few raking in the big bucks. That makes law a ripe field for unionizing.

Photo: Press Association via Cambridge News

Christine Clarke is an employment lawyer at Beranbaum Menken LLP in New York City. She has published in Slate and writes an employment law blog at Wage Against the Machine. She’s a regular contributor to the blog.