It has come to be known around here simply as "The Fax."
In 1989, as a junior litigation associate at the former Shea & Gould firm, one of the partners with whom I worked extensively came in and closed my door. He seemed rattled, for the first and only time before or since in the 26 years I've been sitting next to him. I was overcome with an immediate sense that whatever was going on, no good was going to come of it for me. He said something close to "You're going to hear people talking about some of us leaving to start our own firm. I can't talk to you about it yet, but don't do anything until we speak," and then turned and left.
As I was about to learn, just minutes earlier a proof of the announcement for a non-existent firm that would eventually become Ingram Yuzek Gainen Carroll & Bertolotti had been faxed straightaway to Shea & Gould's "Communications Management Center" (or some such overblown title for the cramped windowless room where some Jetsons-inspired new thing called "faxes" would appear every so often). Within minutes, the draft announcement—with the new firm's highly inclusive name leaving little doubt as to the collaborators' identity—reached members of the executive committee and, at that moment, a firm was born, a preemie, some weeks before its due date.
As it happened, the printer creating the nascent firm's stationary and announcement had called one of the soon-to-be-departing partner's secretary, who (not being in on the secret) cheerfully shared with the printer Shea & Gould's fax number (we only had the one for the entire 200+ lawyer firm). The Fax arrived a few minutes later, abruptly ending the new venture's planning stage, along with each of the departing partners' Shea & Gould careers (and a few days later, mine too).
We're still going strong a quick 23 years later. And we have since consulted with, and been litigation counsel to, law firms and law firm partners leaving or being left. Drawing on our personal experience, we typically recommend to spinning-off lawyers a somewhat different approach to announcing and timing their departure (after we finish explaining what "faxes" are). Here are some of the things we tell them, with the goal being to avoid litigation at almost all costs, while placing yourself in the strongest possible position if one or both sides can't let go.
Leaving and Staying
For the Lawyers Leaving: Go. If you're seriously considering leaving, it's usually best to go ahead and leave. Whatever trust, compensation, respect, support, "platform" or other real or imagined issues that have prompted you to consider a move are unlikely to get meaningfully better.
Leave, but leave honorably. It puts you in the best position professionally going forward, as well as in litigation, if things go backward. You want your former partners to send you matters they cannot handle (conflicts, billing rates, etc.). It may not ever help, but it's not likely to hurt, which may not be the case with leaving enemies behind. Also, you want to be as squeaky clean as possible for when the affidavits start to fly. It is very difficult for fact-finders in these cases to actually find the facts and being—or at least being perceived as—the "good guy" can go a long way.
For the Lawyers Being Left: Let them go. Better yet, help them go. There's usually little to be gained by trying to convince dissatisfied partners that they actually are, or will be, satisfied if they stay. Offering negative encouragement ("It's tough out there…you'll never make it without us") or arousing guilt ("I can't believe this…after all we've done for you") accomplishes nothing. If they're going, wish them well and get on with it.
The Planning Stage
For the Lawyers Leaving: You are allowed to plan to leave, subject, of course, to fiduciary, ethical and other duties owed to your soon-to-be former partners. But you are not permitted to use the firm's resources to do it.
From the moment you start communicating with others inside or outside the firm about leaving, it is best to conduct yourself as though everything you do or say is discoverable, and will eventually be discovered. It's a good pre-litigation strategy and will help keep you in check. It is surprising how often we find in litigating these cases departing partners who are unaware of the extent to which their technology-based activity becomes "of record" in one form or another. (Don't even get me started on "That's impossible, I 'double deleted' it from my desktop" when devastating pre-departure emails show up in discovery.) It's all fair game if things go bad.
For the Lawyers Being Left: Given the brightly lit trail so many departing partners unknowingly or carelessly leave behind, it is crucial that you preserve all files and communications (primarily, emails) sent or received by each of the departing partners. Their desktop computers, laptops and mobile devices should be "frozen" and secured. Whatever electronic data is not already backed-up should be backed-up. You will hopefully not have to use any of it, but you must make every effort to retrieve and preserve it.
Clients and Files
For the Lawyers Leaving: Under Rule 5.6 of New York's Rules of Professional Conduct, lawyers are not permitted to enter into agreements that restrict the right to practice after termination of the partnership relationship (subject to certain exceptions). When partners split, clients are up for grabs. But the clients—not the lawyers—decide who will represent them. We have seen over and over that feuding partners putting a client in the middle rarely ends well for any of them.
Departing partners are not permitted to solicit clients before leaving the firm. But it's rare that it happens quite this way. Lawyers apprehensive about striking out like to know that they will have clients when they do. It's not appropriate, but it's the way it usually goes.
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