Unless you can afford billboards across the state, you may wonder whether you can sustain a practice representing discharged employees, rejected applicants for employment, victims of sexual harassment, and others who cannot afford to pay for your services on an hourly basis. Although it is not as easy as taking a job with a firm being paid a considerable hourly rate to represent employers doing the discharging, rejecting, and harassing, my experience tells me that it is not only possible to sustain such a practice, but it is incredibly rewarding. Here are few suggestions for doing so based upon 50 years in the practice of labor and employment law.
SURROUND YOURSELF WITH DIVERSE COWORKERS WHO SHARE YOUR VALUES
Practice what you preach. Surrounding yourself from top to bottom with a diverse group of coworkers sends a powerful message to both potential clients and the legal community at large. Judges and juries admire a diverse legal team that works well together and embodies the principles they espouse. Clients appreciate being represented by someone who not only looks like them but may have shared experiences. A woman complaining of sexual harassment in the workplace may find it difficult to describe the graphic details of her ordeal to a conference room full of men.
BE ACTIVE IN THE BAR AND OTHER ORGANIZATIONS OF LAWYERS AND JUDGES
Unless you believe in advertising, most potential clients will be referred to you from one of two sources: former clients or other lawyers and judges. In terms of former clients, of course, providing good, ethical representation is probably the surest way to earn referrals of family and friends who later encounter a problem at work. Consider everyone you meet to be a potential referral source — court staff, opposing counsel, opposing witnesses, arbitrators, etc. Remember that you only have one chance to make a first impression.
Good representation and good results for your clients will lead other lawyers and judges to refer potential clients to you. It also helps to be active in bar organizations and take on leadership positions and opportunities to write in legal journals so other lawyers and judges will know who you are and what you can do. Build strong relationships within the bar and maintain a professional approach to your cases.
BE CAUTIOUS AND SELECTIVE IN DECIDING WHOM YOU WILL REPRESENT
The importance of this suggestion cannot be overstated. It is probably the single most significant determinant of whether you will be able to sustain a practice representing those who cannot afford to pay your fees on an hourly basis. Once you have started to build your practice, you will be flooded with calls from potential clients who have sad stories to tell. Your job is determining which of these sad stories you will be able to turn into a successful outcome for you and your client. You must remember that unless you are successful, you will have accomplished nothing for your client and you may have diverted time and attention away from clients whose claims have a greater likelihood of success.
Gathering the facts
The first step to determining whether to represent a potential client is gathering all of the facts. If the potential client is an incumbent employee, start with a request to the employer for the employee’s personnel records. In Michigan, an employee is entitled to periodically review their personnel records under the Bullard-Plawecki Employee Right to Know Act, MCL 423.501 et seq.1
It is also important to determine from the outset whether the employee is unrepresented or employed in a bargaining unit represented by a labor organization. If so, the employee may have contractual rights under a collective bargaining agreement, such as a right to file a grievance challenging any adverse employment action including harassment and discharge. Because employers must bear the burden of proving just cause for any adverse employment action under a collective bargaining agreement, the grievance procedure is the preferred remedy for a bargaining unit employee seeking your advice and counsel. You may be able to assist the employee in filing a grievance or seeking the assistance of their collective bargaining representative. An occasional unrepresented employee may also enjoy contractual rights under a written employment agreement.
Pay close attention to the terms of an employment agreement that shorten the applicable limitations periods or require the employee to vindicate their rights through arbitration rather than in court. An employee’s initial application for employment or an employee handbook may also contain terms shortening limitations periods or requiring that the employee vindicate their rights, including statutory rights, through arbitration.2 Such terms may be enforceable even if the employee is not aware what they have signed or never received a copy of the employee handbook.
Gathering the facts requires you to carefully interview potential clients and any supporting witnesses, probably more than once. You need to listen carefully not only to gather all the facts, both favorable and unfavorable, but also to determine how your clients and supporting witnesses will stand up during deposition and come across at trial. Are your clients likeable? Chances are if you do not find your clients likeable, neither will a jury.
Researching and knowing the law
In addition to knowing whether there is an enforceable shortened limitations period or arbitration clause, it is important to know whether there is a contractual, common law, or statutory basis for a potential client to challenge the adverse action of which they complain. Absent a contractual limitation, illegal motivation, or discharge in violation of public policy, there is simply no claim for wrongful termination.
If a potential client’s claim is based upon a statutory or constitutional claim that the adverse action was illegally motivated, it is also important to know the standard to which your client’s proofs will be held. In Gross v. FBL Financial Services, for example, the United States Supreme Court distinguished the standard of proof in age bias cases from the standard applied in claims filed under Title VII of the Civil Rights Act of 1964.3 Under Title VII, an employee must prove only that a protected criterion (e.g., race, sex, or religion) was a motivating factor for an adverse employment decision, so the employee can prevail even if there were other reasons for the adverse action. Under Gross, employees filing claims under the Age Discrimination in Employment Act must show age was the “but for” reason for the employment action, which is a higher standard of proof.4
Anticipating the employer’s inevitable motion for summary disposition/judgment
Motions for summary judgment have become inevitable in employment litigation because employers and their attorneys correctly perceive judges to be more receptive to their defenses than juries. Skilled defense counsel has become adept at obtaining the factual concessions necessary to have employees’ claims determined as a matter of law by a court rather than as a question of fact by a jury. Concerned with docket control, federal courts in particular have eased the standards under which defendants may obtain summary judgment.5
Defeating the employer’s motion for summary judgment must begin well before the motion itself is filed. It starts with the initial interview of the plaintiff and the evaluation of potential claims and the employer’s defenses. In a garden-variety disparate treatment case, for example, the plaintiff’s attorney must be on the lookout from the initial interview for the evidence which will create a factual issue with respect to the employer’s motivation: Is there direct evidence of the employer’s discriminatory intent, such as discriminatory remarks made by the decision makers?6 If not, is there circumstantial evidence from which an inference of discrimination can be drawn, such as evidence that similarly situated employees of another race or gender were treated differently, or evidence that the employer has deviated from its normal procedures in reaching the decision complained of?7
DEVELOP A CADRE OF EXPERTS WITH WHOM YOU CAN CONSULT
Second opinions are as important in law as in medicine. After everyone in your office has weighed in on whether to accept representation of a potential client, it is often valuable to seek a second opinion from an attorney whose judgment you respect. Another set of eyes reviewing the critical documents and summaries of the interviews of a potential client and supporting witnesses will often bring a fresh perspective. If your proofs involve statistical evidence or your potential client’s damages claims involve actuarial calculations, it may also be worthwhile to consult an expert in advance of the determination to accept representation.
LOOK FOR OPPORTUNITIES TO REPRESENT CLIENTS WHO CAN AFFORD TO PAY A REASONABLE HOURLY RATE
Sustaining a practice representing clients who cannot afford to pay on an hourly basis may require that you occasionally supplement that practice by taking on clients who can. Among the fertile sources for such representation are labor organizations, employee benefit plans (including pensions), non-profit organizations (including political organizations), corporate executives who occasionally need help negotiating or evaluating an employment or severance agreement, and, finally, serving as a mediator or arbitrator. You should also consider having clients agree to pay actual costs as a case progresses. Not only is this ethically preferable, but there is a lot to be said for clients having something invested in the process.