Professional Liability Blog

Lawyer Reboot: Starting Over at a New Firm

11/07/2013 | by Thomas F. Maffei


Professional Liability Blog

Lawyer Reboot: Starting Over at a New Firm

By Thomas F. Maffei on November 7, 2013

Not that long ago, a lawyer joined a law firm, rose through the ranks, became a partner and finished out his or her career at that firm.  All that has changed.  Today, few lawyers start and finish their careers at the same law firms. Law Firm Partner Moves

Partners leave law firms for a variety of reasons.  Some may leave to teach, go into business or enter public service.  Others may be “outplaced” because they don’t have a sufficient book of business to succeed in today’s highly competitive law firm environment.  Still others, particularly those with “portable billings,” get caught up in “the grass is always greener” view of life and are lured away to other law firms that offer a “wider platform,” more resources and greater financial rewards.

Whether the partner is outplaced or seeking greener pastures, there is a lot to think about.  For the former group, one of the big challenges is to overcome a sense of failure and the belief that only the best lawyers or the most successful lawyers are those who remain at one firm or one type of firm for their entire careers.  While the numbers are hard to come by, there is plenty of evidence that many lawyers have found professional lives in second or even third practice settings that are personally and professionally satisfying and financially rewarding.

Another challenge for the outplaced partner is to identify the best next career move.  How does the lawyer identify the best opportunities?  How can the lawyer get the real story behind the new law firm’s flashy website descriptions?  One important way is to network.  Learn as much as possible about the places under consideration.  Also, the lawyer should use a “career coach” to help identify the lawyer’s strengths and weaknesses and help figure out a realistic next move.  If no set of clear choices emerges, an experienced recruiter can help identify opportunities.

The lawyers in the second group, i.e., the lawyers seeking greener pastures or who are being targeted by another firm, can also benefit from a realistic self-assessment.  Generally speaking, however, these lawyers are seldom lacking in self-confidence.  For this group, the biggest challenge is figuring out how to make the move in a way that does not run afoul of the law regarding departing partners.

Those rules were first discussed almost twenty-five years ago in the widely cited Meehan v. Shaughnessy case.  In a nutshell, the SJC said that partners “may not act out of avarice, expediency or self-interest in derogation of their duty of loyalty.”  The Meehan rules still apply, perhaps more so today, in light of the greater focus on law firm economics, increased profitability and the changes in technology.  Today, a lawyer can load thousands of pages of documents and client records on a thumb drive and transfer them with a click of the mouse.

What are some of the “do’s and don’ts” for the partner with “portable billings”?  

  • First, a pre-emptive strike on a law firm’s clients, even clients whose only contact is with the departing partner, is forbidden.  The “joint letter” procedure announced in Meehan is mandatory. Once that letter is sent, the departing lawyer and the firm are free to lobby the clients for the continued business, having in mind that the Court (and the BBO) will likely take a dim view of any effort to win over the business by overstatements or, worse, misstatements about qualifications to do the work or by criticizing the other law firm seeking to keep the work.
  • Second, steps taken by the departing partner to slow down existing work while at the firm, to defer billing the work, or to hold off taking in new work until after the move, are clear violations of the departing partner’s obligations to the firm.  And, of course, not accounting for any post-departure collections for work done prior to the departure is an obvious breach.
  • Third, participating in major firm decisions after the decision to leave is made, such as voting on a new lease, is also a violation.
  • Fourth, a partner who decides to leave a firm may make preparations to leave while still a partner, including setting up office space elsewhere, hiring staff, making banking arrangements and doing all the other logistical things needed to open a law firm.  The departing partner cannot, however, use his existing law firm’s resources to make the arrangements.
  • Finally, most commentators agree that a departing partner cannot solicit the law firm’s employees, including administrative staff and non-partner lawyers, while still a partner at the firm.

Although not a rule, the departing lawyer also should not burn bridges on the way out the door.  While emotions can run high in these situations, there are good reasons for the departing lawyer to try to maintain contact and credibility with his former partners and associates.  It is no accident that large firm “reunions” have become immensely popular in recent years.  There are lasting friendships on display at those gatherings.  And, by the way, there are also potential “billings” for those who are interested!

Thomas F. Maffei – Senior Counsel

Thomas F. Maffei is Senior Counsel in the firm’s Litigation Department and an experienced mediator.