Exit Strategies
When an employee decides to leave a company, it’s not unusual for that person to submit to an exit interview or sign an exit agreement.
But the practice is less common when lawyers leave law firms. And some say that should change. “If we advise clients to do it, why wouldn’t a law firm do it?” says Michael A. Hood, who represents employers for Los Angeles-based Paul, Hastings, Janofsky & Walker.
In general, exit interviews are an opportunity to look for trends in attorney attrition, says Anita J. Zigman, who directs career development at Paul, Weiss, Rifkind, Wharton & Garrison. Previously, Zigman was director of associate affairs at Proskauer Rose. Both of these New York City-based firms routinely conduct exit interviews.
Exit interviews have two aspects, Zigman says. The first is administrative: getting forms signed, making sure office equipment is returned. The other involves a confidential conversation with departing lawyers. The purpose is to gather “real information about their experience at the firm and why they’re looking to leave and what led them to make that decision,” she says.
Legal consultant Bo Y. Kim, a managing director in the Chicago office of Major, Lindsey & Africa, conducted exit interviews with departing associates in her former position at a large Chicago-based firm. Issues she addressed included the return of any firm-supplied notebook computer (likely to have confidential information on the hard drive), when to expect a final paycheck, eligibility for post employment medical benefits and rules for providing contact information. Except when the firm asked someone to leave, Kim also asked what motivated the move.
Written exit agreements can be especially helpful when a termination is troublesome, Hood says. In these cases, it can be particularly important to document any specific compromise reached between the lawyer and the firm in the event a dispute arises, he says.
Defining The Fine Print
Exit agreements often contain anti-disparagement clauses and promises not to interfere with the firm’s ongoing business. Martha Fay Africa of Major Lindsey’s San Francisco office summarizes typical provisions: “I’m not going to say bad things about you; don’t you say bad things about me. I’m not going to try to steal your clients; don’t you try to steal my clients. I’m not going to reveal secrets about the firm that I may or may not know.”
What’s best avoided? Any explicit or disguised non compete language, says Carl G. Roberts of Philadelphia, chair of the ABA Law Practice Management Section. He points to Rule 5.6 of the ABA Model Rules of Professional Conduct, which deems it unethical for a firm to limit a lawyer’s future employment unless the departing lawyer is retiring.
Although the Model Rules are not, in and of themselves, binding on lawyers, many state bars have adopted their own versions. In that case, compliance with these ethics rules is mandatory for attorneys who practice within such states.
It isn’t a bad idea to ask departing lawyers to sign an agreement reiterating their ethical obligation to maintain client confidences, says Denver lawyer John C. Tredennick Jr., a former chair of the LPM Section. Although client confidentiality is already covered by ethics rules adopted in virtually every state, “you couldn’t fault the law firm for wanting to have it made clear,” he says.
Ultimately, a firm must decide whether to ask what its ex-lawyers think. Dallas employment defense lawyer Michael P. Maslanka of Ford & Harrison doesn’t mince words: “Don’t conduct exit interviews unless you want to hear what the departing employees are saying and, if needed, act on it.”
He warns that interview documents may be requested in subsequent litigation. “If an employer is getting consistent complaints on a supervisor and does nothing, and an employee later sues claiming wrongful conduct on the supervisor’s part, then guess what?” he says. “You have a litigation problem.”
