New York Lawyer
May 23, 2002

Q:
I am a partner in a firm where a very powerful partner has a brother who is a senior associate. The partner helped found the firm a number of years ago and his brother was brought in early on, when the firm was pretty small. Now the firm has grown significantly.

The brother is, to put it bluntly, not a good lawyer. We have grown used to covering up for him, doing his work over, ignoring his ham-handed comments (he�s not too enlightened when it comes to dealing with women, especially secretaries), etc.

I have gotten pretty tired of dealing with, or avoiding, this guy, and I�m very sick of hearing complaints from others. Many associates have said to me that the guy should go, and have enlisted my help. They are particularly annoyed because this firm in general has very high performance standards. Other people who have fallen short have been summarily let go.

The trouble is that the powerful partner doesn�t take criticism of any sort too well. My feeling is we just have to live with it.

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A:
A previous column talked about the figurative idea of family in the workplace -- offices that talk proudly about themselves as family, but who have trouble getting rid of the "family members" who aren�t pulling their weight anymore. What you�re talking about -- actual family members who present issues -- also is a fairly common scenario.

In working through this issue, I�d consider what�s the best thing for the firm, for clients, for employees and even for the wayward brother. The risks of keeping him are only increasing, both because of legal malpractice and sexual harassment, so right off the bat there�s a threat to the firm�s financial health, to clients� well being and to a safe environment for employees.

Moreover, keeping on a widely acknowledged weak performer is not the best thing for the associate -- being held in disrepute by his colleagues is embarrassing. It also hurts the partner�s credibility in the firm when a family member is getting such disparate treatment. So -- leaving aside awkward questions of family relations -- the best thing for all concerned is that he be moved on to a workplace where he can better contribute.

But can it be done? Can the brother be moved along without ruffling the power partners� feathers too badly? Certainly the path of least resistance is to work around the guy, just as everyone has been doing, but the issues are only going to get more troublesome as time goes on.

One way is to take a global approach and work with other partners (and relevant staff people) to overhaul the performance review procedures. The systems at present sound too informal and don�t make glaringly apparent his shortcomings (are written-off billings documented?). More objective, clear-cut criteria for advancement and retention can, over the long term, reveal problems with the brother in a less personal way than simply telling the partner that his brother is a loser (and risking the partner�s wrath).

As you probably know many firms have anti-nepotism rules precisely to avoid this kind of awkwardness. I don�t think family members automatically should be outlawed (full disclosure: I practiced law with my mother for a number of years, so I have a personal stake in this issue) but if they are on the payroll there needs to be some mechanism so that their performance can be judged fairly along with everyone else�s. Ideally that would include designating a partner to evaluate and review the family member�s performance, with the relative recusing himself or herself from making decisions regarding the person.

In weighing whether to risk talking to the partner directly, consider his importance and power on the one hand against the damage done to the firm and clients by his brother. It�s obviously a very sensitive point, but the responsibility on you as a colleague to confront this partner grows as the brother�s risk level and sheer aggravation increases.

Put yourself in the position of employees: they are looking to firm leaders to do the hard things that they are powerless to do themselves. If you think through your approach very carefully in advance, considering likely responses and even role-playing the conversation beforehand, you can wind up with a better result than you might think. (Basically this is an exercise in courage.)

Think about a particular person who could approach the partner and present the issue in a way that could turn the tide, someone for whom the partner has respect and who is not inflammatory. When actually delivering this message to the partner, talk about the effect on the person delivering the message, or the firm as a whole, avoid conclusions and labels, and be very factual.

For instance, "We�re concerned that our clients are not getting the kind of service they need from Paul. Specifically, we�ve noticed that Paul has missed several deadlines, has had to have the last several briefs rewritten resulting in 50 hours of written-off time, and that clients have notified lawyers in the firm of their dissatisfaction with his performance." This emphasizes the good of clients and the firm, keeping the conversation away from hurtful personal attacks. You can also point to the legal risks, which can result in monetary harm to the firm.

Another approach would emphasize caring concern for the brother: "I�m concerned about Paul and whether this is a good place for him. I think there may be a better workplace for him than our firm. Can we work together to find a more suitable situation for him?"

The more you present the problem in an objective context set apart from the family relation, and emphasize teamwork -- that you�re in this together, that it�s not an "us against you" standoff -- the more likely the partner will have a graceful way to acknowledge the problem. If he is the touchy type, your job is to offer him a scenario -- a way of talking about the issue -- where he can come to terms with it without being embarrassed or humiliated. This way, one hopes, his brother can move along and the firm can thrive in his absence.

Sincerely,
Holly English
Principal Consultant, Values at Work