X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.


“There’s a trick to the ‘graceful exit.’ It begins with a vision to recognize when a job, a life stage, or a relationship is over – and let it go. It means leaving what’s over without denying its validity or its past importance to our lives. It involves a sense of future, a belief that every exit line is an entry, that we are moving up, rather than out.” — Ellen Goodman

Q. I am getting ready to leave my firm and need some advice on timing, relaying news of my departure to clients and to others in my current firm, handling the transition of files, and quite a few related issues. Are there some general guidelines that you can provide?

A. This is a frequent question that has been submitted by lawyers of all stripes – partners, associates and in-house counsel. The posture of “getting ready to leave” is an interesting one that for many lawyers, can span a few years or even a career.

There is an inertia that seems to grip lawyers so tightly that it renders many motionless when it entails making a job change. Some of this is due to the fear of the unknown, which is anathema to those in a profession that is trained to critically look for everything that can go wrong in any situation, rather than what could go right. Some of it can also be caused by an ever-increasing workload in which one allows that next case, file or deal to always take priority over grappling with making a change.

For those who begin and end their careers in organizations that they truly love, this advice of no moment. However, in a world in which people (including professionals) change jobs every four and a half years, those fortunate few who retire from their only firm are as rare as a day with no misdeed from Britney/Lindsay/Paris, etc. (feel free to substitute the name of your favorite celebrity miscreant).

I will address the steps you can take and issues to consider along the way. First, though, it has to be underscored that you can’t be “getting ready” to leave – for the sake of your current employer, your future home, any involved intermediaries, and, most importantly, you, it is vital that you be “committed” to leave should you find a better home. The consequences that befall someone who approaches this cavalierly or – heaven forbid – accepts a counteroffer from his employer (do you think you’ll ever be looked at in the same light? Statistics show you will likely leave within a year.) are just too significant.

Second, take a hard look at the timing of your prospective move. If your bonus, distribution or stock vesting is coming due later in the year (or next year), and is something you cannot afford to leave behind, then plan accordingly. Let your recruiter and potential new employer know the amount that is at stake and when it will be paid. If an employer wants you badly enough, it may fold those dollars into your deal. Otherwise, you may be able to strike an agreement whereby you start following your receipt of those monies. What you cannot do is interject this into the process at the 11th hour, as a passive-aggressive way to support staying with your employer or as an amateurish negotiating ploy.

Notice is a somewhat related issue. This rarely, if ever, comes into play for associates, as they are at-will employees who normally are not bound by anything in this realm other than common practice. Partners, however, often are tied to obligations that exist in a firm’s partnership agreement, which need to be considered. A breach of a notice obligation could trigger a forfeiture of distributions or holdbacks, or, as more often is the case, a delay in receipt of those funds. In-house lawyers, particularly general counsel, frequently have highly specific notice obligations that should be carefully reviewed.

A third consideration, particularly for in-house lawyers, is the breadth of any non-compete agreement. As with bonuses and distributions, if there is a clause of this type in play, the time to disclose it is at the outset of the process. If there is even a hint of an issue, you should have an attorney review its import (and be willing to pay for this – don’t just slough it off on a lawyer you know who can take a look at it).

If a prospective employer wants you badly enough, it should indemnify you of litigation costs that arise if you are sued, and, if you can negotiate a good deal, will even pay you to sit on the sidelines during the length of the litigation. Of course, that protection won’t be provided if you don’t disclose the obligation and, if you mention the issue towards the end of the process, the coverage you are offered is likely to be less comprehensive.

Ethical rules have generally made it impossible, as a matter of law, for law firms to put language in a partnership agreement that would forbid a lawyer from leaving to join a competing firm. However, this has not deterred some firms from trying to create a de facto bar (via the aforementioned notice obligations and potential forfeitures of monies that are owed).

It is an open question whether such provisions, if challenged, would ultimately be enforceable if they were to effectively handcuff a partner from leaving. In reality, in this environment in which the competition for lateral partners remains white-hot, a firm is only shooting itself in the proverbial foot if it goes down that path.

Query: If you are a lateral partner candidate, why would you even consider a firm from which you could never escape if things don’t work out? The answer demonstrates the folly of such an approach.

Fourth, as you are nearing an agreement or have reached one with a new firm, you have to prepare for your ultimate departure. It is a given that you have to respect your fiduciary obligation to your current firm and clients and have to zealously handle all matters and not, in any manner, usurp opportunities that arise. The ethical rules and a sense of fair play mandate such an approach. This does not mean, however, that you cannot prepare for a move, as a real possibility exists that you could be summarily escorted out the door once notice is given.

Personal files, as long as they are not intermixed with proprietary firm or client information, are your property. If such intermingling exists, pull out the information that truly is personal. Your contact list is crucial and the time to get it is pre-notice, as you could be locked out of your firm’s computer system once your decision has been announced.

Again, stick to information that is germane to you. It is important to assume that your firm can go back to analyze every keystroke you made on your computer, so forgo the temptation to download that great firm forms file, firm client list or other juicy data. Doing so is morally, ethically and legally improper, and it is not the way you want to leave anyway.

Fifth, some special rules are in play for partners. A thorough review of such rules is outside the scope of this immediate column. Case law and state specific ethical rules also militate against providing a compendium that can fully be relied upon here; as such, I will stick to the basics. Clients cannot first be told of your impending move and cannot be solicited until you leave.

The proper approach is to first inform your firm of your resignation (and back it up with a short letter). You can then tell clients where you are going and provide your new contact information. As most firms have been down this road before, the common practice is to agree upon the language of a letter and/or e-mail that will be sent to clients in this regard.

It normally is improper and in violation of ethical rules to recruit associates to join you in a move. While you can provide them with the same information that clients receive, you cannot actively recruit them until you have joined your new firm.

It is important to keep clients’ best interests in mind throughout this process. If you do that, it most often will lead you to the right answer as to what you can or cannot do if you delve into undefined areas. Files are one example, since, as long as clients have paid their bills, the files are their property, not that of your law firm. Just as you cannot spirit them out the door, your firm similarly cannot hold them hostage.

Finally, a topic that has proven vexing to many lawyers is the amount of time that you should stay following the announcement of your departure. All lawyers want to leave on a good note – the “graceful exit” alluded to in the quote at the outset of this article. For associates, this normally means two weeks, as it affords time to wrap up loose ends and transition files.

Some well-intended associates get overly concerned about this transition and seek to stay for up to a month (or even longer). In this regard, it is crucial to remember that as great as any one lawyer may be, the firm will survive your departure. Moreover, you will be joining a new team that wants you – going overboard to please those in your soon-to-be former home is self defeating, as it will start the next chapter of your career on a bad note.

For partners, there often is no reason to extend your stay. Again, you want to leave amicably and on a high note, but the longer you wait, post-notice, the longer the window in which bad things can happen. This delays your ability to make a pitch to clients and, considering how hard you worked to get them, why would you do that? It also provides ample opportunity for your old firm to work hard to prevent key associates from joining you when you finally can ask them. It thus behooves you to be fully prepared and, once the announcement is made, to move apace.

FRANK M. D’AMORE is the founder ofAttorney Career Catalysts,www.attycareers.com, aPennsylvania-based legalrecruiting, consulting andtraining firm. He is a formerpartner in an AmLaw200 firm, general counsel inprivately held and publiclytraded companies, and vice president of business development.He can be reached at [email protected] .

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.