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Follow the myriad of rules when changing jobs

By: JESSICA STEPHEN//September 7, 2016//

Follow the myriad of rules when changing jobs

By: JESSICA STEPHEN//September 7, 2016//

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David Leibowitz has seen plenty of attorneys change firms during his 42-year career. “It gives rise to some challenges,” says Leibowitz, who spoke about his experiences last year during the State Bar of Wisconsin’s Solo and Small Firm Conference. (Staff photo by Kevin Harnack)
David Leibowitz has seen plenty of attorneys change firms during his 42-year career. “It gives rise to some challenges,” says Leibowitz, who spoke about his experiences last year during the State Bar of Wisconsin’s Solo and Small Firm Conference. (Staff photo by Kevin Harnack)

From ethics to finances to client files, there are so many things to consider when an attorney changes firms.

David Leibowitz has had to think about all that and more at various times during his 42-year career, both when he made his own lateral move decades ago and when, in recent years, he watched as associates made their way to other firms.

“It gives rise to some challenges,” said Leibowitz, who spoke about his experiences last year during the State Bar of Wisconsin’s Solo and Small Firm Conference.

Among lawyers who change firms, many end up making lateral moves. In fact, a study released earlier this year by the National Association for Law Placement shows that the frequency of lateral hiring is up for the second year in a row. It accounted for nearly 13 percent of the hires that have occurred since 2014 — the highest point in 13 years.

“It’s been a long time since I made a lateral move,” said Leibowitz, who last changed firms for a comparable position about 25 years ago. “But when you make a lateral move the first thing to consider is: What was the relationship with the firm you left behind? And what were your relationships with your clients? And ask yourself, ‘Who were your contacts, and who were the firm’s contacts?

“You’re entitled to maintain your own relationships and you’re entitled to announce that you’ve left, but what you can’t do is you can’t say to the people you are working with now is, ‘I’m at Firm A, and I’m about to move to Firm B, and I’d like to work with you at Firm B.’ What you do is move to firm B and then say, ‘I’m at Firm B, and it’s up to you whether you want to keep working with me.’ That’s fair.”

Such advice forms the backbone of many legal ethics guidelines for lawyers who change firms. Wisconsin’s Supreme Court Rules, for instance, require attorneys to keep clients “reasonably informed about the status of the matter,” including their status with a firm.

Although the exact methods for providing notification aren’t always prescribed by state rules, the general consensus is that lawyers should furnish a written notification, Leibowitz said. That’s true regardless of a lawyer’s reason for leaving.

Wisconsin ethics rules also call on lawyers to tell their current firms of impending moves before reaching out to clients, who are then free to decide whether they want to stay with the firm or follow.

In some cases, firms will choose to reach out on their own to clients.

“Clients don’t usually hire a firm, they hire a lawyer,” Leibowitz said. “So you have to explain: ‘A lawyer is leaving, and I’d be happy to represent you going forward. On the other hand, if you want to make a change, you have the chance to do so.’ You have to provide a path for that whether it’s a break-up, whether it’s a lateral move, whether it’s a new partnership.”

Things can get a bit stickier when attorneys leave suddenly, as Leibowitz found after opening Lakelaw in Kenosha, a Wisconsin-based offshoot of his Illinois-based bankruptcy and foreclosure defense practice.

Leibowitz actually dealt with sudden changes twice in recent years — once when an attorney took leave and again when the only resident attorney in the firm’s Wisconsin office moved to another city.

Once again, the basic ethics rules applied.

“You have to think of the client first,” Leibowitz said.

That’s especially important when partners split up. Such times can make it tempting to act out of spite or hurt feelings by attempting to invoke a non-compete clause, which are not allowed in Wisconsin, or taking other steps otherwise to hinder a former partner.

“One thing that’s easy to get wrong is for the lawyer who is departing to say, ‘This is my client,’ and take the client’s file,” Leibowitz said. “The file has to stay with the law firm of record until there is an agreement that the client wants to make a change. And that’s up to the client.”

Departing lawyers also must be careful to avoid taking things that are proprietary to the firm, such as a database.

“That’s property of the firm,” Leibowitz said. “You can’t copy that and move that along to the new firm and use that. You have to be really, really careful.”

In the immediate aftermath of a breakup, many firms will change computer passwords and limit access to email in order to help prevent a departing lawyer from falling prey to temptation.

Still, Leibowitz said, “You have to train people about the proper ethics and behavior in advance in the event that this happens.”

Lawyers should also not forget that they have fiduciary responsibilities, such as administering trust accounts and dividing up fees. For that reason, it’s important that some sort of final account be taken when a lawyer moves on or even if a client plans to leave.

Of course, even if the ethics rules don’t dictate the course of action, Leibowitz said, as with any change in relationship status, being polite can make a big difference.

“Even though a breakup may not be on the best terms, they are people you spent your days with and had trust and confidence in,” Leibowitz said. “It’s good to maintain those relationships. They could be referral sources in the future. They could be references in the future. If you do the right thing and treat people the way you’d like to be treated, it can pay dividends.”

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