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Should lawyers, like pro football players, operate as free agents? Or can the firms they work for indenture them in return for the time and money they invest generating clients for its partners and associates? Simply put, those are the questions with which the Florida Supreme Court will grapple next week when it takes up the case of the employment agreements required of lawyers hired by Becker & Poliakoff. The answer, however, may prove exceedingly more complicated and could prove to be a watershed event in the examination of lawyering’s future. The question culminates a long-standing battle between the Florida Bar and the 84-lawyer Fort Lauderdale firm, which has been at the epicenter of many disputes over its demand that lawyers sign employment agreements. Paul Wean, an Orlando lawyer, counts himself among them. Wean was hired by Becker & Poliakoff 12 years ago to work in the firm’s Sarasota office. Several years later, he was asked to head a new office in Orlando, a post that included a promotion to nonequity shareholder. But the move hinged on an employment agreement required of partners and those put in charge of satellite offices. It said that if they leave the firm, they must give back fees from clients they take with them. Wean says he grudgingly signed the agreement because he’d already moved to Orlando and purchased a house. The Orlando office eventually grew to four attorneys. Then in 1995, Wean decided to strike out on his own. Numerous Becker & Poliakoff clients came with him. It didn’t take long for Wean to get a letter from his old firm reminding him of their agreement and asking that he provide an accounting of his fees. Wean refused, saying Florida Bar rules prohibit such agreements because they restrict attorneys’ right to practice. “Alan Becker needs to distinguish between his lawyers and his law firm. His firm may be a business, but the lawyers are not. That is a distinction he seems to fail to understand,” Wean said of the firm’s name partner. But Becker claims his argument makes even more sense today in light of the changing legal landscape. He points to the fact that firms often spend hundreds of thousands of dollars in equipment, office space, training and salaries. “Law firms today make enormous investments. We are a business,” argues Becker. “As much as we don’t like to admit it, if we would like to stay a profession, a viable profession, then we must, and the Bar must, and the courts must recognize that we have to stay in business first.” Wean wasn’t the only Becker & Poliakoff lawyer to leave and take clients with him, according to the firm’s petition. It points also to the departure of Robert Tankel, an equity shareholder who left the firm’s Clearwater office around the same time as Wean. Another equity shareholder, Chad McClenathan, left the firm’s Sarasota office in September and, according to the petition, “is brazenly targeting the most active clients of the firm.” Becker says the firm’s argument is bolstered by a 5th District Court of Appeal’s decision that held there was nothing wrong with another Florida law firm’s employment agreement that required a departing associate to pay the firm 75 percent of any fees he earned from clients who went with him. Gerald Richman of Richman Greer Weil Brumbaugh Mirabito & Christensen in West Palm Beach, who is representing Becker, says he knows of “a number of firms” that have employment agreements. His own firm is among them, although he admits it is not being enforced until the state’s high court rules on Becker’s case. Such contracts, he argues “are not intended to infringe on the client’s choice, but to reasonably protect the law firm so it’s not an open invitation for someone to build a practice and then leave.” With partners jumping from firm to firm in ever-greater numbers and the practice of law evolving into more of a business than ever before, there needs to be flexibility in the rules to protect a law firm’s investment, says Bruce Rogow, a professor at Nova Southeastern University, who represented Becker & Poliakoff on the issue more than 10 years ago. “The world changes, and sometimes the Bar has to be dragged along with the changing world, and the courts have to be dragged along, too,” Rogow said.

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