As a legal recruiting firm, we are often asked to comment on legal issues that our candidates face during a transition. After all, we have seen a lot of placements and transitions over the years, and sometimes this seems like part of the job function. While we offer a heck of a lot of advice and guidance, based upon our experiences, it is not appropriate for a legal recruiter like us to offer a legal opinion.
Indeed, each placement has a unique fact pattern and set of circumstances that may require further analysis to ensure a smooth transition. While many legal recruiters are former practicing attorneys, they have given up that skill set and right to advise in such a capacity. We view this distinction as very clear, especially as we continue to hear about our competitors giving advice that turns out to be inappropriate and wrong.
Over the past five years, we have referred our candidates to Richard Schoenstein, our favorite restrictive covenants attorney from mid-size, full service NYC law firm Tarter, Krinsky & Drogin LLP. We have received outstanding feedback from all of our referrals, which is why we continue to recommend him. In collaboration with Rich, below are eight high-level considerations for lawyers wondering about the legal implications of their impending transitions:
- Be Thoughtful and Plan. Lawyers who are wonderful advisors – even those adept at providing guidance to clients who are transitioning their employment and/or businesses – can fail to fully think through and prepare for their own transitions. When a law firm partner moves from one firm to another, or opens or closes her own firm, or gets his own business divorce, the process must be carefully planned to make sure it goes off without unnecessary fights or other distractions.
- Read your partnership agreement. As a general rule, restrictive covenants are not enforceable against lawyers. But law firm partnership agreements increasingly contain notice provisions and forfeiture clauses that may put requirements on the timing of and manner in which you leave. You should know what the purported ground rules are, including any limitations on getting your capital back, etc.
- Wait to solicit other employees. As a partner, you have a fiduciary duty and need to tell your firm you are leaving before you start talking to firm employees – such as associates and staff – about joining you at the new firm. Generally, you can talk to other equity partners about a move. Non-equity partners and counsel are more cautiously treated as employees.
- Wait to solicit clients. Again, the safest course is to talk to clients only after you have informed your firm that you are leaving. Of course, you also have a duty to the client and may need to tell them sooner depending on the circumstances. And as a practical matter, you may need to run a move by some key clients before you do it – but try to focus on clients that are indisputably yours, rather than soliciting clients of the firm that are shared by other partners.
- Don’t steal anything. This may seem obvious, but like all employee mobility cases, the outcome is highly dependent on the conduct of the departing partner on her way out. You cannot take files until clients authorize transfer. Don’t download client documents, forms or firm documents to a thumb drive or otherwise copy them. Yes, you can take your personal stuff, but be careful not to overstep.
- Assess any other obligations. If you are on the firm’s executive committee or have other special management duties, you may have additional fiduciary duties that alter the manner in which you should conduct yourself in advance of and during a transition.
- Leave in a professional manner. Again, your conduct on the way out matters. So save the parting shots and recriminations. Shake hands, wish everyone luck, hold your head up and walk out the door. Then, once you are safely at your new shop and out of harm’s way, go get the clients. All of them.
- Get Help. If there is any realistic chance of controversy or hostilities, you should consider lining up a lawyer in advance and talking it through. This may seem like self-serving advice from a lawyer, but it is also the right thing to do. Even if this area of law is familiar to you, it is good to get a refresher, another viewpoint and some guidance, and to have someone else watching this while you worry about having the rain follow you from one venue to another.
About Walker Associates LLP
Walker Associates is a New York-based legal search firm dedicated to uniting accomplished partners, practice groups and associates with opportunities that rise above the crowded middle. Our philosophy, insight and extensive connections enable us to forge long-term placements that elevate our clients’ careers and practices. http://www.walkersearch.com/.
About Tarter Krinsky & Drogin LLP
Tarter Krinsky & Drogin is the total legal solution for middle-market businesses. Since our founding in 2001, the firm has nurtured a dynamic collection of lawyers from a broad range of backgrounds and experiences who share our common goal of effectively and efficiently serving middle-market businesses. Purposefully designed to serve as an integral part of any client’s business team, we are a vibrant, full-service, entrepreneurial law firm dedicated to smart thinking and strong client relationships. Learn more at http://www.tarterkrinsky.com/.
By Ross Weil and Richard Schoenstein