To negotiate or not negotiate: that is the question. Many 3Ls and recent grads wonder whether they should negotiate salary and benefits for their post-graduate attorney job.
The answer is maybe …
First, a note: because of the complexity of this subject, I’ll release it is two parts. Look out for Part 2 early next week!
Part 1 Covers
- When you should’t negotiate your starting salary;
- When you should negotiate your starting salary;
- The low risk of the employer rescinding the offer; and
- What you need to know before your begin negotiations.
Part 2 Covers
- The ins and outs of negotiating.
- How salary negotiations differ from other negotiations.
Now, let’s get the easy part out of the way:
When you Shouldn’t Negotiate Your Starting Salary
You do not need to negotiate your starting salary if you are offered a Big Law position after completing a summer associate program. In other words, if you were a traditional summer associate at a large law firm, and you were subsequently offered an associate attorney position, there is no need to negotiate.
This is because these firms pay their entire starting class the same salary.
Likewise, you will not negotiate most post-graduate clerkships or fellowships, especially those with the federal government. Most governments have a pre-determined amount that they pay for these positions.
Finally, there often isn’t room to negotiate starting salary in many public interest positions.
If you aren’t certain whether it is appropriate to negotiate the starting salary–for example, if you are offered a position at a large law firm that doesn’t technically fall into the “Big Law” category–then you can simply ask whether there is any room to negotiate any aspects of the compensation package.
When you Should Negotiate Your Starting Salary
Almost any other time it is completely appropriate to negotiate your starting salary and benefits.
Given the speed with which the internet moves, the below Tweet from January 2022 is a bit of old news, but it is still telling:
Obviously, I take issue with this for so many reasons. And while Ms. Johnson does not work in the legal industry, it shows how bad employers and the people doing their bidding are capable of behaving.
Recently, people are starting to reject the idea that those of us who struggle with Imposter Syndrome or confidence need to fix something about ourselves. The truth is that it is normal for confidence to ebb and flow, and the “cult of confidence” often causes more harm than good because it sends the message that those struggling with confidence issues (which, again, is totally normal) are somehow flawed.
If you are interested in learning more about this, check out this video from Mina Le.
But back to salary negotiation. Though Ms. Johnson’s Tweet is problematic on multiple levels, it does remind us of the importance of negotiating our starting salaries.
But What if the Employer Rescinds the Offer?
I’d be lying if I said this wasn’t a possibility, but during my five years in a law school Career Services Office, I’ve only seen this happen twice.
And, if you negotiate appropriately (more on that below), and the employer rescinds the offer, do you really want to work there?
Employers will never treat you better than when they are trying to hire you. If an employer makes an offer, she has a need for a new attorney and she offered you the position because she wants you.
If an employer rescinds that offer because you know your worth, then there is something seriously wrong with that employer, and they are probably going to behave badly once you’ve been hired.
The Two Times I’ve Seen Offers Rescinded: Number One–Applicant Behaving Badly
I once worked with a student who attempted to negotiate his salary in a completely inappropriate way. The employer rescinded the offer when the student took a very aggressive stance and, among other things, said something along the lines of, “If you don’t pay me more, I’m going to have to drive for Uber on the weekend to pay my bills.”
While this may have been true, and the students who said it was not wrong for feeling that way, negotiating your starting salary is completely different from any other type of negotiation. This is because the person you are negotiating with is going to be your boss in many cases. (Many small firms and companies do not have an HR department, so you’ll likely be negotiating with a partner/your future boss.)
So your negotiation approach should be far more cooperative and collaborative (more on that below).
The Two Times I’ve Seen Offers Rescinded: Number Two–Employer Behaving Badly
The other time I saw an offer rescinded, the employer was at fault. Now in all fairness, I wasn’t there during the negotiation, so I had to take the recent grad at her word. But I tend to believe my students, and she had no good reason to lie to me.
Based on the grad’s account, she acted completely appropriately during the negotiation, and the employer agreed to her request for a higher starting salary. However, the next morning, he called and rescinded the offer.
This is the exact instance where I say: Did you really want to work for him anyway?
If he won’t agree to a higher salary during negotiations, what will happen when it comes time for raises or bonuses? (Don’t even get me started on discretionary bonuses. I.e., where the employer says you’ll get a year-end bonus, but there are no parameters to determine the bonus).
In case you are interested, the graduate received another offer a couple weeks later that paid a higher starting salary than what she had negotiated with the rescinding employer, so it all worked out.
What to Know Before you Negotiate your Starting Salary
First and foremost, you want to negotiate after you receive the offer and before you accept it.
Most employers will call you to extend the offer. This is because they like you and are excited to offer you the position.
Some employers, however, will email you to extend the offer. This doesn’t mean they aren’t excited to give you the offer. They might just prefer emailing, so don’t read too much into their method of extending the offer.
If you know or think the offer is coming (for instance, if you missed the employer’s call, and she left a message asking you to return her call), have a pen and paper with you when you speak with the employer.
You’ll want to write down the terms of the offer because employers don’t always send employment contracts that outline the specifics of the offer.
What you’ll Need to Know
For most jobs, you’ll want to know specifics about the following:
- Vacation/Time off
Most legal employers pay a salary, meaning that you’ll be paid a fixed amount which is represented as an annual sum. E.g., $80,000 per year.
I’d be leary of legal employers that attempt to pay you as an independent contractor or who want to pay you based on billables.
Here’s a short story, which I didn’t include in the above section of offer rescission because the graduate didn’t attempt to negotiate his salary; instead he asked appropriate follow up questions:
I worked with a grad a few years back who was offered a position that paid an hourly wage based on his billables.
Of course, he had questions, including whether that wage was paid based on how many hours he billed or how many hours were actually billed to the client. These numbers can differ, and you can find more information about this here.
He also wanted to know whether payment was contingent on whether the firm actually collected from the client. Believe it or not, not all clients pay their attorneys.
When he asked these follow-up questions the firm rescinded the offer. This is another example of an employer behaving badly.
Many law firms pay bonuses, while other types of legal employers typically do not. The thing to know about bonuses is whether your employer pays them and whether there are measurable outcomes, like meeting a certain number of billable hours. Or, is the bonus is discretionary?
Unfortunately, a lot of smaller firms pay discretionary bonuses. In all fairness, part of this is reasonable. If the firm isn’t well established, it may not want to commit to a pre-defined bonus structure.
But on the other hand, you might receive a very small bonus compared to what you deserve, and a discretionary bonus is another opportunity for employers to behave badly.
For the reason stated above, you probably won’t get a firm to budge on the bonus structure, but it is something to consider if you have multiple offers or time to look for another job.
Your legal employer should offer you full benefits, which I would define as medical, dental, and vision. Your employer, unless a very small and new company, should also offer you some sort of 401k or retirement plan.
I recently saw a law firm offering a starting salary of $50,000 with no benefits. I wouldn’t recommend that anyone take that position. The pay was severely under market for the firm’s practice area, and it didn’t offer benefits. Yet another example of an employer behaving badly.
A good employer should offer you at least two weeks of paid vacation time. One thing to be on the lookout for, however, is whether you’ll actually have the opportunity to use that vacation time.
During the interview process, you can try to gauge how much the attorneys are working. Check for things like:
- Do the attorneys seems to be happy and in a good mood?
- Are their doors open or closed?
- How cluttered are their offices? Nearly every attorney is going to have piles of papers and other work in their office and on their desk. However, if they have an exceptionally cluttered office, it could be an indication that they are working a lot of hours.
I don’t recommend asking about this during the interview though. Instead, wait until you get the offer. That is when you have the most power.
Billable Hours: If you are working for a firm that bills hours, you’ll want to know whether there is a billable hour requirement, and, if so, how many hours you’ll be required to bill each year.
Some firms do not have a billable hour requirement. While in many cases this might be a good thing, some firms use this as an opportunity to really ride their associates.
For example, if a firm doesn’t have a billable hour requirement, but the attorneys work really long days, associates have no way to gauge how much they are expected to work and could fall into a trap of working irregularly long hours.
If the firm doesn’t have a requirement, ask questions about how much the attorneys typically bill or what the general schedule is for most attorneys.
Client Development: New associates should not be expected to develop clients. Their focus should be learning how to practice law. I’d be leary of any firm that expects new associates to develop clients or structures some of the salary around client development.
Parking: If you are working in a big city or somewhere with limited parking options, you’ll want to know whether the employer pays for parking.
Bar Prep Reimbursement: Some employers, usually law firms, pay for bar preparation programs and/or the expenses associated with taking the bar. You’ll want to know whether your employer offers reimbursement for this, and if so, the parameters of that reimbursement.
Bar Dues and Other Payments: Most employers should pay for your membership to your state’s bar, and many employers will pay for you to join professional organizations.
Miscellaneous: This is a fairly extensive list, but the legal industry is broad. So there may be extra things you need to know that I’ve not mentioned here. If you think the offer is coming–if you get that phone call, for example, or you know the final interview went great–spend some time thinking about what else you might need to know before negotiating.
Conclusion and Part 2
Click here to read Part 2, which covers the ins and outs of negotiation and how salary negotiations with your future employer differ from the types of negotiations most lawyers handle.
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