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During the past year, we witnessed a marked increase in the number of law firms, both large and small, which are finding that their existing unfunded retirement plans are becoming significant, disruptive forces. The underlying problem created by these plans is that the plans result in current income being diverted to former partners, thereby reducing the compensation of the remaining active partners. Today, the combination of an expected spike in retirements related to the baby boom generation and, for many firms, greatly increased benefit exposure due to sharp increases in firm profitability that is factored into the value of retiree benefits, stand ready to test the financial viability of even the strongest firms.
In our experience, a reduction of current income may be acceptable only as long as the amount of the current income being diverted is modest (i.e., a limitation of payments provision pegged at not more than 4%-5% of total distributable net income), and the amount of remaining distributable income to the partners is at a level they perceive to be generally competitive with the market. If, however, the firm begins losing partners to competitors and/or to retirement, and the existing partners perceive they are diverting disproportionate current income to such former partners, the viability of the firm is frequently undermined. As the amount of income being diverted to former partners exceeds this threshold, current partners are motivated to:
Over the years, many firms proactively attacked their unfunded plans to avoid the financial challenge that others now face. More often than not, firms that altered their retirement plans did so in response to specific strategic challenges, including:
One of the most common hurdles in addressing unfunded programs is that partners ultimately must give up a benefit, and there is no alternate source of funds available from which to replace this benefit. For less senior partners, the lost benefit may be more than offset by increased current income over their remaining careers. However, for more senior partners who have already foregone historical income and may now face the prospect of losing future benefits, the termination of the program can prompt them to sue the firm for promised benefits or call for the dissolution of the firm in order to realize some value from the firm. For these reasons, resolution of such programs is among the most difficult operational issues law firms confront.
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