In terms of client files, it used to be that to steal files you had to steal files. No more, with everything stored electronically. Ease of access notwithstanding, you are not permitted to take files with you, however stored. And if you take them before a client has requested they be transferred to you, the former firm will include this in every piece of paper that leaves their litigation counsel's office. "They stole client files" is an easy, and sometimes compelling, litigation button to push.
For the Lawyers Being Left: Let the clients decide whose client they are. If they are inclined to depart along with your former partner, do not get in the way. Again, putting the client in the middle of a fight over who their lawyer will be is likely to have the client looking elsewhere for a fresh set of attorneys who, from all outward appearances, are not about to engage in a cage fight.
On either side, do not, do not, do not disparage the lawyer or lawyers from whom you are trying to peel away the client.
Associates and Employees
For the Lawyers Leaving: You cannot solicit associates or other firm employees before you leave. There is little point in speaking with them before your departure. You will have a pretty good idea who will or won't be interested without polling them in advance. Moreover, you absolutely must assume that if you speak to associates or employees beforehand, one of them will swear someone else to secrecy and tell them, who will then immediately tell the managing partner (after swearing her to secrecy).
For the Lawyers Being Left: Let them go. If it's just about money and you want to take a shot at keeping them by offering them more money, do it. But in our experience it's very rarely just about the money for associates looking at their long-term prospects. Yes, having your people poached is an affront, but like clients, the employee—not the employer—get to decide who their employer will be.
Litigating
For the Lawyers Leaving: Don't.
For the Lawyers Being Left: Don't.
Borrowing from Thomas Hobbes and his description of the life of man in nature, I have elsewhere described commercial litigation as solitary, poor, nasty and brutish, but never short. Unlike life, though, litigation is generally best avoided.
The issues that are thrown up for the world in partnership disputes get particularly nasty, stemming mostly from the disappointment, hurt and insult of a break-down between people who at one time were joined "'till retirement do you part." As is often said about these fights, "It's worse than a divorce." And, "But they started it," is a poor excuse to let matters devolve into a lawsuit.
From an economic standpoint, the legal fees you will incur to wage the war are likely to exceed the amount of money you may hope to recover (and, no, representing yourself against your former partners to save on legal fees is not a viable work-around). Emotions run extremely high in these matters, as do the legal fees.
Of course, both sides need to put themselves in the best possible position if litigation cannot be avoided. But the best position is to avoid the fight. It is a difficult line for a litigator to walk. On one hand, you don't want your lawyer client to think you are unwilling or lack the skill to engage in a fight to the death on your client's behalf. On the other, if there's a caption out there with your name on either side of the "v.," you've already lost.
Pay too much; accept too little. Stop fighting over emotional dollars. Don't let the first thing for future (or present and soon to be former) clients to see when they Google you is how you and your former partners are accusing each other of all kinds of unethical, uncivil and unprofessional behavior. It's tabloid-worthy stuff. Lawyers and non-lawyers alike LOVE to read about lawyers slamming each other. Put your ego aside and preserve your reputation. Take the settlement that leaves both sides equally unhappy. Giving too much or getting too little only hurts for a minute. Full catastrophe litigating—particularly among former partners, who have professionally hugged and kissed and vowed undying commitment—leaves deep and ugly scars.
After one frustrating failed settlement meeting in a partnership break-up case we handled, my adversary said something close to: "I guess our clients will have to suffer more of litigation's indignities before letting go of each other." Don't subject yourself to the indignities; do negotiate the best deal you can, take it and smile. You'll wonder for a day or two whether you could have relinquished less or extracted more. But you'll never be sorry you didn't litigate.
David G. Ebert, a member of Ingram Yuzek Gainen Carroll & Bertolotti, writes and speaks on commercial litigation and the attorney-client relationship.
Subscribe to New York Law Journal
