June 10, 2016
Mitigating Risks For Departing Partners, Part 1: Control the Timing of Your Departure Announcement
Taking the plunge to embark upon an attorney transition inherently involves some risk. Like with most things, some of the risk you can control, some may be outside of your control. However, taking steps to mitigate risk whenever possible will reduce the likelihood that you are subject to ethical scrutiny, disputes with the firm or protracted legal battles following your departure. It will also increase the likelihood that the firm will cooperate with your client transition plan and the eventual return of your capital.
There are two main categories of risk a departing partner faces when considering his/her transition to a new firm. First, the risk that your firm will find out about the potential departure (or departure considerations) prior to the time that you are ready to tell the firm or provide formal notice. Second, the risk that your conduct with respect to your departure plans or considerations will expose you to potential claims by your firm or your clients of unlawful or unethical conduct. Sometimes attorney conduct will potentially implicate both categories of risks. The first part of this article on mitigating risks will analyze ways to avoid having your firm or clients finds out about your departure before you are ready to announce it.
Don’t use Firm Technology for your Departure Plans
While this may seem obvious on its face, many attorneys are not mindful of this, especially when first considering whether or not to explore a departure. For example, do not use firm computers, phones, firm email addresses, internet networks and/or search engines to communicate with anyone related your potential departure. This includes contacting recruiters, personal attorneys, potential employers, leasing agents (if you are opening your own shop), or searching for those things on the web. Most medium to large size law firms (and an increasing number of smaller firms) monitor technology use on some level. While the firm may not pay attention to many of these things in real time, it is a risk that is avoidable. Instead, if you do not already have it, obtain a personal cell phone and laptop or other computer for all your non-firm related activities. This is also a good practice for other reasons which include ensuring client confidential information remains on the firm’s secure networks.
Be Careful When Accessing Firm Documents
Most partners can access the firm’s partnership or shareholder agreement, and related amendments, as well as policies and procedure manuals, whenever they want. Larger or more sophisticated firms monitor when partners access or download such information, including when they access other information. Be aware of this possibility and be prudent when accessing those documents. While analyzing these documents is an important step to understanding your rights and obligations when considering a departure, if you know access to such information is being monitored, you should develop an alternative strategy for when and how to obtain these documents. This issue highlights the importance of retaining partner and shareholder documents in your personal files when they are initially reviewed and executed or prior to considering a departure.
Keep Your Professional Development and Social Media Profiles Up to Date on a Regular Basis
This is not only good for your current business and practice development, but is often expected of, and recommended, for most attorneys in the profession. However, dramatically revising a Linked-In profile, asking for a multitude of endorsements and recommendations from current and former co-workers or clients, and/or suddenly reaching out to connect with large numbers of people, may cause your current colleagues who may see your profile and updates to be suspicious of your motivations. If your professional profiles are updated regularly and built with care, then it will serve you well for your current practice, as well as for when you are planning to depart.
Keep Your Inner Circle Small for as Long as Possible
While you are starting to consider a departure, or begin planning for one, tell as few people as possible. This is especially true when it comes to your work colleagues. While you may have many trusted colleagues and even friends at the firm, you should avoid telling them anything until you announce your departure to the other partners at the firm. (While there may be exceptions in the case of individuals that are directly part of your departure plans, there will be other issues to consider in those circumstances.) Not only does this mitigate the risk of your potential departure getting out before you are ready to announce your plans (even if inadvertently), you are also putting your colleagues, who may also be partners, in a potentially awkward position if they know of your plans. These individuals may start to feel torn by conflicts between your personal relationship, what is in the firm’s interests and how to reconcile this information with potential fiduciary duties to their other partners within the firm. Don’t put them in this position and save yourself any concerns as to whether this information will get out before you have decided to depart.
Continue to Fulfill Your Duties to Your Clients and Firm to the Highest Level
Even though you may be exploring other career options or planning for a departure, this is not the time to let your duties to your clients or the firm take a back seat. If your billable hours or face time at the firm noticeably drops for several months in a row, not only will this be a tell-tale sign that something is amiss, but this is not the way you want to leave your firm. This is a time to reinforce to your clients that you can still handle their matters in the same exceptional way you have always done and that the departure is not a distraction. You also don’t want your firm to have any basis to question your commitment to being a productive member of the firm to the very end – which can also mitigate exposure to any potential damages claims.
These tips will help you manage the risk that your firm will find out about your departure before you have made a final decision on what to do, or are ready to announce it. Remember, making informed decisions, strategically planning and consciously navigating the grey areas helps reduce many of the risks inherent in partner departures and lateral moves.
Dena M. Roche
O’Rielly & Roche LLP