A recent ruling in a legal malpractice case opening the door to Stradley Ronon Stevens & Young turning over personnel files is a reminder that law firms may want to be cautious about what they write in performance reviews.
Santander Bank made headway last week in its request to review the personnel files of the attorneys and paralegals at Stradley Ronon who worked on a deal for the bank that led to its filing a legal malpractice suit against the firm.
Santander, which has sued the firm for allegedly failing to protect the bank’s security interest in a $95 million loan, argued the personnel files of the lawyers who worked on the matter would show the skill sets and capacities of the people handling the bank’s work.
Philadelphia Court of Common Pleas Judge Patricia I. McInerney rejected Stradley Ronon’s argument that the files were irrelevant because they didn’t specifically reference the underlying matter for which Stradley Ronon represented Santander and because their disclosure could potentially cause embarrassment to firm personnel.
In a one-paragraph order issued last week, McInerney said Stradley Ronon’s counsel should review all of the firm’s documents related to the job performance of each attorney and paralegal who worked on the underlying loan documentation and then confer with counsel for Santander.
The bank was also seeking the billing records for all matters Stradley Ronon has handled for the bank since 2000, arguing they would show the expertise Stradley Ronon had gained in representing the bank’s interests. The bank further argued it owned the records, not Stradley Ronon.
“Evidence of Stradley’s expertise may help determine the appropriate standard of care and expose why Stradley, not Santander, was the proximate cause of Santander’s injury,” the bank argued in its motion to compel discovery.
But McInerney denied that request.
While the order is unclear as to what will happen once the attorneys confer about what is contained in the personnel files, it certainly opens the door to their discovery—something that isn’t unheard of in legal malpractice cases.
Abraham C. Reich of Fox Rothschild has defended a number of law firms in legal malpractice cases. He said plaintiffs lawyers often ask for the personnel files and they have come into play in some cases.
Reich said he received summary judgment in a case on behalf of a large law firm; had it gone to trial, his client could have been hurt by his having to share with the jury what was contained in the personnel files, he said. But on the whole, Reich said he doesn’t think those files win or lose a case.
“But they can add flavor and can help,” Reich said. “They’re certainly not going to hurt a plaintiff because they say [the employees are] doing great work. That doesn’t mean shit.”
Clifford E. Haines of Haines & Associates handles legal malpractice cases from the other side of the aisle, representing plaintiffs.
“It is pretty routine to try and obtain them because you never know what you are going to find in a personnel file,” Haines said, noting there could be evidence of a physical or mental disability or other issues that would affect an attorney’s ability to do his or her job.
“As a general proposition though, courts are very, very reticent to go down that road because let’s assume someone has an addiction problem. … You have to be able to tie that to the negligence, and one doesn’t always follow the other,” Haines said.
Because courts are so reluctant to grant discovery of personnel files, Haines said he has stopped asking for them unless he knows something to be in them or has a strong suspicion.
But as one of the earliest gender discrimination cases against a law firm showed, firms may not want to gamble that their personnel files will remain private.
In the case of Ezold v. Wolf Block Schorr & Solis-Cohen, personnel files became the crux of plaintiff Nancy Ezold’s case against Wolf Block for gender discrimination. She argued that while her reviews as an associate at the firm were very positive, she was denied partnership while some male associates who received poor reviews were admitted to the partnership.
In the trial judge’s 1990 opinion ruling in favor of Ezold, he recounted some of the things said in the reviews about some of the male associates who were made partner, such as, “‘I really don’t think [Associate A] should become a partner. In fact, if he is made a partner, I will never again submit an evaluation on any associate. I don’t know how he has lasted this long in the firm.’”
Other review comments about the male associates later named partner were: “‘not real smart,’” “‘writing is dense and mediocre,’” “‘strictly average,’” “‘barely adequate,’” “‘bit of a con man,’” “‘more sizzle than steak,’” and “‘there has been a recurrent problem where he simply disappears without notice, sometimes for a couple of days,’” according to the judge’s opinion as to liability in Ezold.
While that was a gender discrimination case, those comments could be equally if not more damning when a firm is sued by a client for malpractice.
Reich said the revelations in Ezold sent “shock waves” through the Philadelphia legal community at the time. And they put firms on notice.
“Law firm reviewers are admonished repeatedly to be careful about how they say things and what they say and to be accurate and not to be inflammatory and not to be sexist and not to be racist, all of those kinds of things,” Reich said.
Reich said it has become the industry standard, at least for large law firms, to be mindful of the comments they put in reviews.
There is nothing to suggest there is anything problematic in Stradley Ronon’s personnel files at issue in Santander v. Stradley Ronon. The firm said in court filings that the request was burdensome and impermissibly vague along with noting the potential embarrassment it could cause. Santander said there was a protective order in place to alleviate the concerns of potential embarrassment and said there were only eight attorney files and one paralegal file in question, negating the argument that the request was burdensome.
Calls to attorneys for both sides were not returned by press time. Santander is represented by William Slaughter at Ballard Spahr and Stradley Ronon is represented by Michael Kichline and Robert C. Heim of Dechert.