(Note: Originally published online at Complete Lawyer, July 2008)
Most law students and lawyers know quite a bit about finding a job—how to write a compelling cover letter and an attention-grabbing resume, how to navigate tricky interview questions and how to make contacts who can help with the job search. With all the time we expend finding a job, it’s not surprising that we never focus on the flip side: leaving a job. Yet, how you leave your place of employment—whether it’s a firm, government or corporation—can have more of an effect on your career than what you actually do after you’re gone. Your goal is to preserve your relationship with the employer you’re leaving while still vigorously protecting your rights.
You’re Leaving Because You Want To Leave
In many ways, departing a firm voluntarily is more difficult than getting fired. Sure, you don’t experience the same powerlessness and embarrassment as when you’re told to leave. On the other hand, you still need to deal with colleagues who may feel betrayed by your departure, or who view your motives with suspicion, believing you want to steal clients or bring down the firm. Here are some do’s and don’ts about disengaging:
Be prepared: It doesn’t hurt to brace yourself for a worst-case scenario in which your firm sends you packing the day you give notice. In this situation, the firm would close ranks and deny you access to your computer and files by deactivating your security codes and password. Of course, this means you would lose the ability to save what’s rightfully yours.
To avoid this, before you give notice, save copies of all of your work product, e-mail messages, and any client materials you’re entitled to retain; and start bringing home the seminar materials, bar journals, and other publications that belong to you. Do this whether you expect your firm to react negatively or not.
Be considerate: Give your firm the traditional two weeks’ notice—if not more. Try to avoid giving notice in the weeks before a major trial or closing. Finally, assure your firm that you will continue to work long enough to finish outstanding work, or to brief a new attorney on the matter. Of course, your firm might decline your offer; in fact, they might ask you to leave right away. But at least you can be satisfied that you acted professionally.
You Are Asked To Leave
In these tough economic times, many law firms are downsizing, firing first-rate lawyers who in many cases have never before dealt with rejection. And let’s be honest—sometimes law firms act downright unlawfully, squeezing out female lawyers who’ve returned from maternity leave or forcing out older, better paid lawyers. If you believe that you’ve been a victim of unlawful conduct, consult with an employment lawyer. Bringing a lawsuit can negatively impact your career, but at the same time, our profession won’t improve unless those who were wronged step up.
If you were fired unfairly but not unlawfully, you may want to vent about your plight either internally or even go public on a blog site. Before you do, however, consider this:
Badmouthing your former firm can burn bridges, or even cause the firm to disseminate negative information about your performance. If there are skeletons in your closet such as client complaints or poor reviews, you might do well to keep quiet. Likewise, if you believe that others at the firm are sympathetic to your situation and might pass work your way or help you find a job, consider whether badmouthing your firm is worth it. And by the way, if you send an email to partners or others giving them a piece of your mind, assume that it will eventually wind up on the Internet.
You don’t need to leave the firm with your tail between your legs. Express your disappointment or anger to lawyers with whom you worked but do it in a professional manner. This leaves the door open to repair or rebuild the relationship down the road.
When you leave your employer, whether voluntarily or involuntarily, you may be entitled to certain benefits such as compensation for vacation time or the right to purchase health insurance through COBRA. If you’ve been fired or you’re planning on starting a firm, negotiate vigorously for what you deserve; every little extra bit of cash can help alleviate the financial stress of the early days of starting your own practice. Here are some benefits for which you should actively negotiate:
Vacation/sick days. Many attorneys who leave a firm or the government find themselves with three or four weeks of unused vacation.
Retirement contribution and bonuses. In contrast to vacation benefits, which accrue all year long, some benefits—like retirement contributions or bonuses—are distributed annually, usually in January or February for the previous year. If you’re leaving voluntarily, you may be able to time your departure so that you’re around when these benefits are dispensed. However, if you’re asked to leave late in the year, you may miss out on these benefits unless you speak up. Again, consult your employee handbook and HR manual. If you’ve already met the criterion for a pension contribution or bonus, then make your case for receiving it.
COBRA. Federal law requires employers with 20 or more employees to provide employees and their dependents the right to continue health insurance coverage up to 18 months after leaving a job. Even though COBRA requires you to reimburse your employer for its share of your insurance premiums, COBRA coverage is generally lower than what you could procure on your own since you can take advantage of your employer’s group rates. COBRA imposes strict deadlines for electing coverage so it’s up to you to stay on top of the process to avoid missing a deadline.
Unemployment. If your separation is involuntary, you probably qualify for unemployment benefits. Don’t be too ashamed or proud to take unemployment; after all, you’ve been paying into the system for as long as you’ve been working, so you might as well take what you’ve earned. After what you’ve been earning at your firm, unemployment doesn’t amount to much, maybe $300 to $400 per week for three months. But that may be enough to cover some bills while you decide what to do next.
Finally, even when you’ve been terminated from your position, you have some leverage in negotiating benefits. If your firm fears you might bring a lawsuit, it may try to avoid the possibility by placating you. Or one or more of the partners may feel so guilty about your dismissal that they will try to ease their conscience by giving you what you ask for. For example, if you’re forced out in the last quarter of the year, maybe the firm will pick up the tab for health insurance premiums through the end of the year. This would be especially helpful if you intend to switch over to your spouse’s plan, for example, and you’re not sure how long that process will take.
Divide The Assets
Departing lawyers must also determine what property they can rightfully take and what belongs to the firm. Disputes frequently arise at termination over rights—how to divide clients, and how to assess ownership of other assets.
Clients: As much as firms may want to keep clients, ethics rules impose some limitations that can level the playing field, at least a little.
In contrast to private corporations, law firms can’t execute non-compete agreements to prohibit former attorneys from soliciting existing clients. The ABA Model Rules of Professional Responsibility and every state bar take the position that clients have an unfettered right to choose their attorney.
And any practice which restricts a client’s ability to choose—whether it’s a non-compete agreement, a law firm’s ban on communications between a former attorney and firm clients, or a firm’s refusal to turn over client files so that a client can transfer to another attorney—will not pass muster under ethics rules.
Still, law firms have some wiggle room. Ethics rules don’t stop a firm from offering an existing client all kinds of perks to remain with the firm. In fact, ABA Opinion 06-444 held that a firm can ethically make retirement benefits contingent upon a lawyer’s agreement to sign a non-compete clause (ABA Journal e-Report, May 25, 2007).
In addition, the ethics rules impose limitations on departing lawyers. Both the ABA rules and most state ethics codes generally have rules on contact between a departing lawyer and firm clients. In many cases, ethics rules require joint notice to the client by both the firm and the departing lawyer. Follow these rules when you leave a firm to avoid protracted litigation over clients.
Property: While figuring out the division of clients, departing lawyers must also determine what property they can rightfully take, and what belongs to the firm. In some instances, technological advancements have rendered moot the work-product question. Most federal courts, and many state courts and administrative agencies, have transitioned to electronic filing. Consequently, you don’t need to concern yourself with the ethics of copying your firm’s briefs and motions when you can readily access many of them online at the court’s web sites after you leave.
Client files belong to the clients, so you can’t take them. But you can—and should—take copies of files if only to document your involvement in a matter if there’s a subsequent malpractice action or grievance filed down the road.
Intellectual property issues complicate the question of who owns work product. Though intellectual property considerations do not necessarily bar you from taking presentations, forms and software applications that you created for your firm for your own fair use, they may preclude you from licensing or otherwise profiting from those materials.
These days, departing lawyers may also face a fight over blog ownership. If you started the firm’s blog on your own server, you can likely claim ownership to the blog and take it with you when you leave even if your blog’s visibility eventually generated clients for the firm. By contrast, if the firm funds the blog and you simply contributed posts (possibly even without attribution), the firm would retain ownership—though nothing would prevent you from linking to your posts after you leave.
Last impressions matter as much as first ones. Whether you’re moving on to better pastures or you’ve been forced out, take care to leave your job with your most important asset intact: your reputation.
*Portions of this article are excerpted from Solo by Choice: How to Be the Lawyer You Always Wanted to Be by Carolyn Elefant.