A Philadelphia judge ruled Tuesday that plaintiffs law firm Kline & Specter is entitled to a preliminary injunction barring its former associate from practicing law anywhere else until September.
Philadelphia Common Pleas Court Senior Judge Albert W. Sheppard Jr. held a hearing on Kline & Specter’s petition for injunctive relief against attorney Robert F. Englert Jr. Monday.
At the start of the hearing in Kline & Specter v. Englert , Kline & Specter’s counsel, Richard A. Sprague, said that Englert, who joined the firm after his graduation from the University of Pennsylvania Law School, had violated his employment contract. Under that contract, Sprague said, Englert is required to give 60 days’ notice before leaving the firm. Sprague, of Sprague & Sprague, argued that Sheppard should uphold the employment contract by issuing a preliminary injunction that would bar Englert from practicing law anywhere else but at Kline & Specter for 60 days.
“The law is very clear,” Sprague said. “Attorneys are bound by contracts of employment as long as the terms are reasonable.”
While Sheppard initially stated that the firm’s request sounded like a restrictive covenant for lawyers, Sprague said that a preliminary injunction would be valid because Englert was free to leave to work somewhere else eventually but he needed and had failed to give 60 days’ notice.
Sprague also said that Englert is no longer at the firm, but that he has failed to provide information the firm needs about the cases he was handling. Englert is no longer listed on Kline & Specter’s website, and Englert’s phone number on the docket is answered by a message stating that he is of the R.F.E. Law Office, an appellation which matches his initials.
Sprague also said that Englert couldn’t be compelled by a court order to work at Kline & Specter, but insisted he would be welcome to work at the firm until the 60 days had run out.
Closing the Courtroom
Another wrinkle to the situation emerged during the hearing: Englert has filed a complaint with the Disciplinary Board of the Supreme Court of Pennsylvania regarding Kline & Specter, and it appears that the complaint was included in Englert’s filings.
Sheppard asked Englert, who represented himself during the Monday hearing, if he didn’t see that the Disciplinary Board paperwork specified that such complaints must be kept confidential.
Englert replied that he understood that he would be immune from liability, while Sprague said that the normal paperwork specifies that confidentiality is paramount when making complaints to the Disciplinary Board.
It is not clear what Englert alleged in the complaint because Sheppard sealed the court papers in the case and closed the courtroom at Kline & Specter’s request.
Shortly after the hearing had begun, Sprague moved to have the courtroom closed and Sheppard ordered The Legal ‘s reporter to leave the courtroom.
Both The Legal and Englert objected to Sprague’s request. Sheppard told Englert he did not have standing on the issue, and Sheppard also denied The Legal ‘s request to have a hearing on the motion to close the courtroom.
During a phone call Monday afternoon, Sheppard said that he closed the courtroom because the case involved the substance of allegations that have been reported to the Disciplinary Board, which he said must be kept confidential under the state’s rules.
Englert said in an e-mail Tuesday that he is disappointed with Sheppard’s order and that “I am consulting with counsel to discuss my appellate options and related independent claims arising from this matter.”
Englert said that he couldn’t comment further because of Sheppard’s order sealing the record and because of the “confidentiality of the matters that gave rise to my giving notice to Kline & Specter, P.C., of my inability to continue to be affiliated with the firm.”
“I believe I have done what is right and that I have fulfilled my obligations to tell the truth, and I am hopeful that in time the truth will come to light,” Englert wrote.
Tom Kline and Shanin Specter were present during the hearing Monday.
“The injunctive orders of Judge Arnold B. New [who previously entered an order July 12 prohibiting Englert from soliciting clients] and Judge Sheppard provide the relief sought by our law firm,” they said in a joint e-mail.
In a separate e-mail, Kline and Specter said that they agreed with Sheppard that Englert should not have disclosed that he filed a disciplinary complaint in an “attempt to use such a complaint in civil litigation.”
Sheppard’s order stated that Kline & Specter would suffer greater injury if no injunction were imposed than would Englert if the injunction were imposed.
Sheppard’s order said that Englert must comply with an employment agreement from May 3, 2006, which was then modified Sept. 12, 2009.
In addition to barring Englert from obtaining employment at any other law firm, the order also bans Englert from soliciting Kline & Specter clients. The order is in effect until Sept. 5, with a status conference scheduled for Sept. 6.
Enforcing Notice Clauses
Frank D’Amore of Attorney Career Catalysts said that the norm in the legal industry is for notice provisions in legal employment contracts to go unenforced. Once client notification has been arranged to be carried out in an orderly fashion, in the “vast majority of cases, even if there is some saber rattling, almost all firms back down,” said D’Amore, who said he does not have knowledge of this specific case.
The reasons to not enforce notice provisions include helping the firm’s morale by not requiring an attorney who wants to exit the firm to remain; helping the firm’s recruiting of new legal talent by not gaining a reputation for making it hard to leave; and abiding by the principle that the client’s best interests must be served above all else, D’Amore said.
D’Amore noted, however, that having attorneys exit is harder for plaintiffs firms because of the contingency fee model that requires firms to invest in expenditures on filing fees and expert witnesses.
“It’s much more complex than a general practice firm,” he said.
Plaintiffs attorney James Beasley Jr. said that a notice provision helps make for orderly transitions and allows clients to make a decision on whom they want to represent them.
Plaintiffs attorney Slade McLaughlin said that most plaintiff firms do have agreements setting out how fees will be divided if attorneys leave and also require that if associates leave that they have to leave behind all of their clients.
Plaintiffs firms try to prevent “somebody who comes in as a nobody and becomes a somebody based upon the firm” from taking cases with them, McLaughlin said.
But not letting attorneys walk away when they want to leave can be like having “a cancer,” McLaughlin said.
Neither Beasley nor McLaughlin had any actual knowledge of this specific case.
Englert, a native of Lock Haven, Pa., was appointed as a lecturer in law at the University of Pennsylvania Law School to develop the law school’s mock trial program, according to a February 2010 report in The Express of Lock Haven. He was admitted to the Pennsylvania bar in 2006.
Englert co-founded the mock trial team while attending the law school, the newspaper reported. He joined Kline & Specter immediately after graduating from law school, the newspaper reported.
Englert has been involved with some significant cases at Kline & Specter.
Englert was one of two Kline & Specter attorneys who handled the case of a 16-year-old boy who drowned while in the custody of a school for adjudicated delinquents and dependents in Mercer County, Pa., whose estate reached a $5.12 million settlement with the school and with the school employee who took the boy off-campus for an unauthorized swimming trip.
Englert also was one of the Kline & Specter class counsel in a Montgomery County class action over a fire and flood that devastated a business complex and for which the firm was to receive $11.7 million in attorney fees.
Englert also was part of the firm team that won what is believed to be a record medical malpractice verdict in Erie County: an Erie County jury rendered a $21.6 million verdict in the case of a boy who suffers from cerebral palsy as a result of a lack of oxygen during birth.