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Most people planning to switch jobs know they must give two weeks’ notice before they leave. Lawyers at major firms can count on no such industry standard. In many cases, defecting partners are shown the door as rapidly as possible, occasionally escorted by a security guard for good measure. But in the face of today’s hyperactive market for lateral partners, many firms are brandishing policies designed to hinder and discourage partners thinking of heading to rival firms. Disputes over such policies have predictably increased as partners continue to switch firms, says Leslie Corwin, a partner in the New York office of Greenberg Traurig who specializes in representing partners and firms. “We’re the most mobile we’ve ever been,” he says. “I don’t think that’s going to change.” But firms are still willing to try, especially when it comes to partners with significant books of business. At New York’s LeBoeuf, Lamb, Greene & MacRae, partners who account for more than a certain amount of firm revenue are required to give six months’ notice of intent to leave. Partners who do not meet the 180-day requirement forfeit a large portion of their prorated compensation for the year. That provision of LeBoeuf’s partnership agreement has been a sore point with several partners who have left the firm, but Stephen Davis, the firm’s co-managing partner, says the 10-year-old provision is a sensible measure aimed at minimizing disruption to clients as well as to the firm. “We think it’s more than appropriate,” says Davis, adding that he would be surprised if most other firms did not have some kind of provision targeting departing partners. “There are plenty of techniques for firms to achieve the same purpose,” he says. In Britain, where the market for lateral partners has also become far more active in recent years, the practice of partners taking “garden leave” is still common. Such leaves, during which partners remain inactive before joining another firm, can last several months or more than a year. American law firm partners are rarely comfortable leaving their practices for such long periods of time, and the efficacy of lengthy notice provisions in forestalling departures is far from clear. LeBoeuf has itself seen a string of departures, and several ex-partners say they are contemplating some kind of legal action to recover the compensation they left behind. “It’s anti-competitive,” says one former LeBoeuf partner in New York, who adds that he is contemplating raising the issue in arbitration. “There’s no question in my mind.” Many are skeptical of the legal effect of onerous notice provisions in the law firm context. Anthony Davis, a partner in the New York office of Hinshaw & Culbertson who specializes in partnership disputes, says six-month notice provisions like LeBoeuf’s are extremely rare. Many firms, he says, now routinely dispense with 30-day notice periods. Davis says long notice provisions run the risk of violating state disciplinary rules that bar lawyers from entering into agreements that restrict the firm’s or other lawyers’ representations of clients. “It’s reasonable for there to be some sort of an orderly transition, but, apart from special circumstances, I always take the view that anything more than 30 days is unenforceable,” says Davis. WHERE’S THAT BONUS? More common nowadays, says Corwin, are fights over compensation in the form of discretionary bonuses. Many firms, he says, try to avoid paying bonuses to departing partners, even though bonuses may be a significant part of compensation at those firms. Corwin, who has litigated similar issues in cases against White & Case and the former Breed Abbott & Morgan, says he always advises firms that denying defecting partners bonus compensation runs counter to the fiduciary duty partners owe one another. “If they do it to harm departing partners and notionally make other partners think twice, that’s not all right,” he says. Just the prospect of missing a bonus or other form of deferred compensation can be enough to prevent partners from making a move, though, says legal recruiter Alisa Levin of Greene-Levin-Snyder Legal Search, recalling groups of lawyers who changed their minds at the last minute. “They were all ready to leave and then they realized how much they were going to get in bonuses,” she says. “They waited to find out, and things changed. It’s like postponing a wedding.” INTIMIDATION FACTOR Citing constitutional guarantees of right to counsel, Corwin says most provisions designed to hinder lateral moves are problematic for firms and are rarely enforced by the courts. But he points out that most lawyers choose not to litigate such matters, a fact that many firms may rely upon. Davis agrees that many provisions penalizing lawyers for switching firms have the effect of intimidating lawyers. “Most lawyers try to do these things without getting into fights,” he says. “That’s why firms leave these [provisions] in their agreements.” In a handful of cases, Levin says, a lateral partner’s new firm will guarantee that the partner suffers no financial loss in the move. But such largess, she says, applies only to partners who clearly possess enormous books of portable business. The prospects of the vast majority of lateral partners are deemed too uncertain for their new firms to stake great sums upfront, she says. Keith Pockross, a partner in LeBoeuf’s Denver office who jumped ship to Greenberg Traurig, says he was still contemplating whether to challenge the financial “haircut” he received for leaving LeBoeuf without giving 180 days’ notice. Noting that he may have left behind between $100,000 and $125,000, he estimates that the litigation could cost between $30,000 and $40,000 — and he is not convinced he would prevail. “The cost-benefit analysis may not work out,” he says. Pockross is still awaiting the return of his capital contribution from LeBoeuf, he says. Many firms space out the return of such contributions over several months or years, and, he notes, many lawyers are unwilling to rock the boat before they get all of their money back. In his case, that will be around Nov. 1. After that, he says, he may be more willing to explore options, possibly even sitting down with Corwin, his partner at Greenberg Traurig. “Maybe the next time he’s in Denver, I’ll ask him a few questions,” says Pockross. Anthony Lin is a reporter at New York Law Journal, an American Lawyer Media newspaper.

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