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Most people planning to switch jobs know they must give two weeks’ notice before they leave, but 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, said Leslie D. 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 said. “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, said the 10-year-old provision was a sensible measure aimed at minimizing disruption to clients as well as to the firm. “We think it’s more than appropriate,” said 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 said. 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 said they are contemplating some kind of legal action to recover the compensation they left behind. “It’s anti-competitive,” said one former LeBoeuf partner in New York, who said he was 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 E. Davis, a partner in the New York office of Hinshaw & Culbertson who specializes in partnership disputes, said six-month notice provisions like LeBoeuf’s were extremely rare. Many firms, he said, now routinely dispense with 30-day notice periods. Davis said long notice provisions run the risk of violating state disciplinary rules like New York’s DR 2-108, which bars lawyers from entering into agreements that restrict the firm 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,” said Davis, a New York Law Journal columnist. FIDUCIARY DUTY More common nowadays, said Corwin, are fights over compensation in the form of discretionary bonuses. Many firms, he said, 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, said 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 said. Just the prospect of missing a bonus or other form of deferred compensation can be enough to prevent partners from making a move, though, said 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 said. “They waited to find out and things changed. It’s like postponing a wedding.” Citing Constitutional guarantees of right to counsel, Corwin said most provisions designed to hinder lateral moves were problematic for firms and were rarely enforced by the courts. But he pointed out that most lawyers choose not to litigate such matters, a fact many firms may rely upon. RELUCTANT TO SUE Davis agreed that many provisions penalizing lawyers for switching firms had the effect of intimidating lawyers. “Most lawyers try to do these things without getting into fights,” he said. “That’s why firms leave these [provisions] in their agreements.” In a handful of cases, Levin said, a lateral partner’s new firm will guarantee the partner suffers no financial loss in the move. But such largess, she said, 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 up front, she said. Keith Pockross, a former partner in LeBoeuf’s Denver office who jumped ship to Greenberg Traurig, said he was still contemplating whether to challenge the financial “haircut” he received for leaving LeBoeuf without giving a 180-day notice. Noting that he may have left between $100,000 and $125,000 behind, he estimated that the litigation could cost between $30,000 and $40,000 and he was not convinced of the certainty of prevailing. “The cost-benefit analysis may not work out,” he said. Pockross also noted that he is still awaiting the return of his capital contribution from LeBoeuf. Many firms space out the return of such contributions over several months or years, and he noted that many lawyers are unwilling to rock the boat before they get all their money back. In his case, that will be around Nov. 1. After that, he said, he may be more willing to explore options, possibly even sitting down with Corwin, his fellow Greenberg Traurig partner. “Maybe the next time he’s in Denver, I’ll ask him a few questions,” said Pockross.

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