The Growing Tension—And Opportu nity—in Big Law Nonequity Tiers

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The Shift: The Growing Tension—And Opportunity—in Big Law Nonequity Tiers

Large law firms continue expanding their nonequity tiers each year, as firm management exerts tighter control over who receives firm profits.

The advantages of nonequity tier expansion appear like a win-win for firms and their junior partners: younger lawyers get a partner title and opportunities for business development and training; the firm gets to scale up in certain practices and geographies, even with “partners” who aren’t bringing in as much revenue as top performers.

But as Big Law takes advantage of income partner ranks more, complaints and tensions are leaking out. There are concerns over the length of time it now takes to become an equity partner, and some have complained about women and diverse lawyers getting stuck in a “parking lot” of the nonequity tier. Litigation has been filed about using the nonequity partnership as an “income shifting” device. And some nonequity partners have complained about funding the lavish pay offers for a firm’s lateral partners.

Nonequity tiers are likely a business requirement now for many big firms that want to retain rising star talent. But firms are increasingly facing the baggage that comes from maintaining these ranks.

The Conversation

Each year, the number of nonequity partners in Big Law grows considerably. The nonequity partnership head count in the Am Law 100 rose by 5.3% to 20,722 last year, according to ALM data. The percentage of all partners who are nonequity now sits at 49.4% in the top 100, up from 47.8% in 2022.

The nonequity tier has served a broad range of purposes in the modern age of law firms. Firms are using it for newly-promoted partners, a testing ground for new talent, lateral talent from the government or others who don’t immediately have business, de-equitized partners, or just long-term support partners.

And some law firm leaders have said they created a nonequity tier to stop poaching of young talent.

Wilmer Cutler Pickering Hale and Dorr confirmed in August it was creating a nonequity tier immediately, with managing partner Anjan Sahni saying it “gives us more flexibility to attract, promote, and retain the most sought-after talent in a very competitive market. That's a win for our clients, the firm, and our lawyers, who gain another pathway for advancement.”

Of course, the creation of the nonequity tier also comes with profit advantages for any firm. "These firms all need a mechanism for being able to increase the compensation of their highest performers, and when everybody is an equity partner, that makes it more difficult," noted one law firm consultant.

The Significance

Clearly, nonequity tiers are likely in a firm’s best business interests to launch and expand. But as firms grow them, these tiers come with risks that need to be addressed – or else firms risk snowballing consequences.

For one, Law.com has reported that decisions over who falls into the non-equity tier often lead to tensions—and some exits. When some partners are de-equitized into the nonequity tier, for instance, these lawyers are motivated to find other law firm homes. Sometimes that's part of a firm's plan, but not always.

When law firms bring on lateral partners—sometimes with large guarantees—this can create further tensions with nonequity partners. In particular, some nonequity partners have complained that they are partly subsidizing the compensation package of laterals, or that they are being turned down for higher pay and promotion opportunities.

And as firms build up the nonequity tier, some lawyers feel there are “moving goalposts” to obtain the brass ring of finally moving into the equity tier, with a lack of transparency over the process. Some observers say this can disproportionately impact women and diverse lawyers who are stuck in a “parking lot” in the nonequity tier.

The tension within the nonequity tier has even resulted in recent litigation. Duane Morris was hit with a class action suit in California federal court over the summer, alleging that nonequity partners, despite being taxed as partners, function legally as employees at the firm given the stability of their compensation, regardless of overall firm performance and their lack of influence over firm policy decisions.

The Information

Want to know more? Here’s what we’ve discovered in the ALM Global Newsroom:

The Forecast

Never have law firms had to balance so many business and cultural issues at once.

How do they walk the line of retaining and attracting top talent but still create cultures that are compelling and rewarding for all ranks of lawyers and professionals? The nonequity tier could be either a panacea or a source of more problems. As one Am Law 200 law firm leader said, "One of the problems with the two-tier partnership is that some partners feel like lesser class citizens than other partners.”

The two-tier partnership law firms that will likely succeed with the structure have a transparent approach to the equity partnership and a promotion timeline that hasn’t grown over time. (Kirkland & Ellis notably changed its policy a few years ago to shave off a year in the promotion process, now minting equity partners after nine years instead of 10.) The most strategic law firms are also using the "income partner" path as a springboard to be a successful equity partner, so these lawyers are less likely to fail once they move up.

How firms manage the advantages and risks of ballooning nonequity tiers will ultimately factor in their success and reputation among current and future talent. The question will loom large over firms, amid the need to gain scale and merge cultures during any firm combinations.

Christine Simmons is a senior editor for business of law news who is based in New York. Contact her at csimmons@alm.com.