Should You Sue or Start Fresh When You Start a Law Firm?

If her website bio is any indication, immigration lawyer Kisshia Simmons-Grant is a solo with a bright future.

With top tier undergraduate and law school degrees, a prior position in the prestigious Attorney General Honor’s program, tenure as Assistant Chief Counsel with the Department of Homeland Security trying immigration cases and proficiency in Spanish Simmons-Grant has the killer combination of experience that clients find valuable and a white chip credentials that give big law firms the confidence to send cases her way – maybe even outsource their immigration work to her entirely. Moreover, as a woman and African-American, Simmons Grant, if she chooses, can apply for woman and minority small business status which could make her even more appealing to large corporations looking for immigration assistance or to large firms. (Unfortunately, Simmons-Grant is just a solo, she couldn’t join the National Association of Minority and Women Owned Law Firms, but I digress…)

Yet in spite of the promise that lies ahead, Simmons-Grant can’t yet completely escape her past. It’s not that Simmons-Grant has been sued by her former employer for allegedly taking a matter that belonged to the firm or that she’s stuck working part-time at a previous position because she can’t yet afford to solo full time. Instead, as noted by AmLaw Daily, Simmons-Grant has sued her former employer, big-law firm Quinn Emmanuel for race-based discrimination that took place while Simmons-Grant worked as a staff attorney for the firm.

Among other things, Simmons-Grant contends that the firm gave her less desirable work than her white colleagues and eventually retaliated against her when she complained about working with another attorney whom she feared. Was it discrimination? Commenting at Above the Law, Elie Mystal suggests that firms like Quinn Emmanuel discriminate against all colors but green, and that staff attorneys across the board often receive the brunt of poor treatment. To the extent that there’s discrimination, it may lie in the fact that larger numbers of African-Americans wind up as staff attorneys to begin with.

Simmons-Grant isn’t the first new solo to launch a practice with a lawsuit. A few months back, Greg Berry, now principal attorney at the Law Offices of Gregory Berry brought suit against his former firm, Kawowitz Benson. Berry claims that he was terminated after complaining that the pedestrian assignments that the firm gave him were beneath his “superior legal mind.”

While Berry’s suit is somewhat narcissistic, Simmons-Grant’s case is tougher to call. Was she treated less favorably than her white colleagues? Maybe so. But with her stellar resume, Simmons-Grant was probably far more well-qualified than her peers. Firm management may have recognized — even before Simmons-Grant did herself — that she wasn’t going to be satisfied for long in a lowly position. Thus, though Simmons-Grant’s complaints about undesirable assignments may have been well-founded, the firm had no reason to accommodate or invest in someone whom it believed might not stick around for the long haul.

Certainly, a lawyer forced out of a firm as a result of heinous and systemic injustice is right to consider pursuing the matter. After all, we lawyers are not simply supposed to fight against injustice, but also police ourselves.  So if lawyers don’t bring firms’ wrongdoing to the forefront, who will?

On the other hand, getting fired is a blow to the ego (been there, done that) – and can make a spurned lawyer to make a veritable constitutional case out of the ordinary inequities of the workaday world.   So sometimes, when law firms treat associates differently, or don’t live up to promises,  it’s situational rather than sinister.  After all, law firms are profit-driven entities and lawyers are busy. As such, they have a short fuse and little patience to spend on lawyers like Greg Berry who think they know better, or like Simmons-Grant who are likely in a job for the short haul or on moms and dads who need to leave at three to pick up kids at the bus stop.

Of course, situation doesn’t explain all of the disparities.  I’ll be the first to admit that some of the disparate treatment at  law firms is motivated by, or stems from race or gender-based considerations. For all of the progress that’s been made, many law firms will be, forever and always, old-boy networks that reward and promote their own.

Still, even assuming discriminatory or unlawful action, is a lawsuit the best way to go for a new solo?  I don’t think so.  In the short run, suing a law firm while getting a practice off the ground can hurt a new solo’s chance for success. Instead of spending time marketing and networking, Berry, Simmons-Grant and others who choose the same path will waste time on non-revenue generating depositions and endless scheduling conferences. Moreover, any opportunity for referrals for large firms will evaporate since the firm may question your judgment.  Fair? Of course not. But no one, least of all big law wants to take a chance when referring a trusted client or colleague to a new solo.  And while I’ve modified my position somewhat, I still generally believe that it’s rarely a good idea to burn bridges.

More importantly, there’s a bigger picture consideration as well. Specifically, do you want to waste your time fighting injustice in a system that’s dying anyway? Or as I put the question once before, Do you want to rescue big law or run from it?

I say no. To quote poet Maya Angelou’s inaugural poem from Bill Clinton, Simmons-Grant, Greg Berry, the 10,000-some associates laid off since 2009 — all of us solos and wandering lawyers stand on the pulse of a great day. Rather than cling to the wreckage behind us, we must seize the opportunity that lays ahead:

Take it into the palms of your hands.
Mold it into the shape of your most
Private need. Sculpt it into
The image of your most public self.
Lift up your hearts
Each new hour holds new chances
For new beginnings.