I am an associate at a BigLaw firm considering my career. I have heard rumors that the height of an associate’s marketability for in-house and other post-BigLaw positions is when he is a mid-level. By the time he is a senior associate, and especially by the time he is in the “up for partnership” years, his marketability decreases. An explanation I have heard for this is that it is assumed by prospective employers that senior associates looking for jobs are those who weren’t good enough to make the cut for partnership. Is there any truth to this?

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Dear Marketable:

I suppose there might be some element of truth to what you have heard, especially in this tough job market. But I find it hard to believe in this day and age that prospective employers make an across-the-board assumption that just because a senior associate is on the job market it means that they weren’t good enough to become a partner at their current firm.

Of course, it happens to be true that if you wait until you are a very senior associate to start looking, it probably is due to the fact that you have finally realized that you are not going to make partner at your firm or that your firm is one of the “up or out” firms where if you don’t make partner you then have to move on. But I don’t think that is the reason that a senior associate is not as marketable for a law firm opportunity as are more junior associates.

Before I get into what I believe are the real reasons for decreasing marketability, I want to address one part of your question. You mention that a senior associate’s marketability for in-house opportunities decreases after the mid-level associate point. I completely disagree. A senior associate’s value for in-house positions increases during those years. This is when the best in-house opportunities—other than General Counsel—definitely become available and with 8-10 years of experience under his or her belt, these attorneys are extremely viable in-house candidates.

They have been exposed to close to a decade of litigations and/or transactions and no longer need mentoring or supervision to figure out how to deal with these situations. They are seasoned attorneys and can also manage and supervise other attorneys because they have done it already. They are prime candidates for many of the available in-house opportunities.

A more junior attorney more than likely will still need some guidance and, as I have written before, the in-house environment simply is not set up to provide the needed supervision and direction.

Now, to address what I believe is the real reason that senior associates have difficulty being hired for associate positions in the law firms.

Law firms are generally set up with specific numbers of associates in each class year. There are far more junior associates than there are senior level associates. As the ranks thin out and the more junior associates move on to find new opportunities, the more experienced—and valued—associates stay on, hoping to make partner. The number of senior level associates waiting to make partner is much smaller than any other class of associates. Most likely they have been encouraged to stick around, having been told that the chances for partnership look good. Those associates who will never make partner have already been told that they should find a new home.

So now these senior level, very loyal associates are working harder than ever before and waiting for the word that they have been voted into the partnership.

But now the firm decides to hire an 8th or 9th year associate, someone who has all the right credentials and work history. This person looks to be a lock for partnership at the new firm—clearly the firm has made promises to him or her as when their chance at partnership will be determined. This newcomer to the firm is probably going to take one of those coveted and few partnership slots that should have gone to one of the loyal associates.

What do you think will happen to the morale of those loyal workers? What would you do if that happened to you? You would be really, really upset and probably make phone calls to every headhunter you have ever spoken with—and who could blame you? That would be a stinking thing to do to you and the few other senior associates who have been loyal to the firm and hoped to become a partner there.

And the more junior associates would have similar feelings…why stick around when the firm is just going to bring in senior associates into your class year just when the time for you to make partner is closing in. This is a great way to make sure all of your associates—junior, mid-level and senior—go on the job market. What a mess this would cause.

And another aspect to take under consideration is how the clients are going to feel when a very senior associate is brought in to do the work that has previously been done by other associates who have been with the firm for a long time and perhaps are not billing quite as high of a rate as this new, very senior person.

Yes, it is true that a firm might think that a senior person is on the market because they have not made partner but quite frankly, in today’s law firm only a very few associates end up as one of the shareholders and a prospective employer is very well aware of these statistics. Many, many years ago it might have been true that the only reason a senior associate was on the market was because he or she was passed over and told to find a new home and thus thought of as a big risk by potential new employers. This is not true any longer because most associates don’t make partner these days.

But because law firms do not want to bring in these very senior associates for all of the reasons that I have discussed, an associate’s most marketable years are around the third year of practice through the sixth—the mid-level associate.

At this level the associate has enough training and mentoring to do a good deal of work on his or her own. They are also capable of supervising very junior associates. They come into a firm a number of years away from being considered for partner so the firm has a long time to get to know them and evaluate them. Their billing rate is at such a level that the clients are not going to balk at their bills. And a mid-level associate is not a threat to those few senior associates who are hoping that their loyalty and hard work will be rewarded with an invitation to join the partnership.

But here’s the bottom line—whatever the reason for law firms passing on hiring senior associates, the fact does exist that it is extremely difficult for these seasoned associates to find new law firm associate opportunities. Take this as fair warning—if you think you are going to want to leave your law firm for a new law firm employer, start looking during the years when you are the most viable and marketable. Best wishes!

Ann M. Israel