Navigating Lateral Partner Ethical Considerations – Interview with Tina Solis (Nixon Peabody)

September 2021 Interview Transcript (with light edits)

Dan Binstock 

Hello, everybody. Thank you for being here for today’s first inaugural LateralPartners.com program. We are going to discuss lateral partners, ethics, and issues that arise when partners are going through the lateral partner process.

My name is Dan Binstock, I am a partner with Garrison & Sisson, an attorney search firm based in Washington, DC. And I am very excited to have today, Tina Solis, who is a partner at Nixon Peabody. Tina, I have known you for a number of years now. I’ve seen you speak at NALSC Conferences and you’ve always been a hit.

People love hearing you because you’re able to translate what’s kind of murky into very actionable, tangible, takeaways. And I know that you’re one of the very few go-to attorneys for lateral partners when they they’re dealing with really complex issues.

So I’m super excited to have you here today, and thank you for being here.

Tina Solis 

Well, Dan, thanks so much for having me. It’s always a pleasure to be with you. And we’ve worked so well together over the years that we’ve known one another. So thank you so much, and happy to answer any questions that you have. Because you know, this is the sweet spot for me.

Dan Binstock 

Wonderful.  We’ve got 10 questions to go through, and we’re going to have fun with this … as much as we can have “fun” with ethics.

So tell us a little bit about yourself.  How do you help partners with the lateral process? What is the role that you play?

Tina Solis 

Certainly.  I help in a wide variety of ways for individual attorneys or groups that are moving from one firm to another.

The first is in a counseling role in terms of the do’s and don’ts in connection with the process, and in primarily in adhering to the fiduciary obligations that they have – not only to the current firm, but to their clients as well. So that’s the first role or function that I can play.

In addition, I have also dealt with helping attorneys get return of their capital from their current firms. That’s another issue that often arises in connection with the departure process.

And the third way that I can assess is in helping assessing and analyzing, and comparing the various offers that a departing attorney or group of attorneys they have after they’ve completed the interviewing process.

So there’s a multitude of ways that I can counsel and assist. And it just depends on the level of involvement that my client would like.

1: What Law or Authority Controls a Lateral Partner Move?

Dan Binstock 

Wonderful. So let’s talk about a question a lot of people don’t really understand, which is “What law or authority really controls a lateral partner move?” We see the ABA ethics opinions as well as the state bar associations providing opinions on what you can and can’t do. Then there’s state law and federal law.

How does all of this work together in terms of what authority controls a lateral partner move?

Tina Solis 

That’s an excellent question, Dan, because you’re right – there are a lot of different places that you need to look. And of course, I’m going to give the favorite lawyer answer that no one likes.  And the answer is, “it depends on what law applies based on the issue that we’re dealing with.”

But there are a few places you have to look. So first of all, the ABA and its model rules are a go to place and you are correct, there are ethics opinions that the ABA issues on a fairly regular basis. And, as you know, from one of my prior talks at NALSC, on December 4, 2019, the ABA issued a very comprehensive opinion in connection with fiduciary obligations and the departure process. So the ABA is one of the first places to look.

But you also have to keep in mind that each state has its own set of ethical rules and professional liability rules. And so one of the things that I look at when a client retains me is “Where is that attorney licensed?” and “Where is he or she currently sitting and practicing?” Because we not only have to take guidance from the ABA and their ethical opinions, but we also have to look at the specific case law within the state which, sometimes, depending on the market you’re in, there can be a fair number of opinions in that state. In other states, this is not such a robust issue. And so you may not have as much guidance within the state.

In addition, when you’re dealing with attorney departure issues, one of the key contracts that you must look at is the applicable partnership agreement, because that contains the rules within which you’re playing. And you must not only look at the partnership agreement, but what law governs that partnership agreement.

As an example, I’ll use New York because I’m sitting in our New York office today:  you may have a lawyer in New York, but he or she may be subject to a partnership agreement that has governing law in the state of Pennsylvania or in the state of California. And so that comes into play. And then last of all, as you talk about state law and federal law, it depends on what law applies and what particular issue we’re dealing with. So it’s a very complicated and complex analysis that needs to be done. And unfortunately, I say “it depends” because I can’t give you a clear answer without knowing the specifics. But those are some of the places that you need to look when you are trying to figure out how best to give advice.

Dan Binstock 

Thank you. What is sort of the controlling authority if, for example, you have state bar opinions that may be perhaps at odds with the state law opinion?  Is there any way to know what controls or does it depend?

Tina Solis 

Unfortunately, again, it depends, because are we really looking at a state contractual issue based on the partnership agreement?

Or are we truly looking at what the attorney can or cannot do in connection with the departure process? In that situation you’re probably going to take a state ethics opinion over the partnership language, but again, it all depends.

2: Competing Interests

Dan Binstock 

Thank you. That’s very helpful. Another question that I have is when we think about the competing interests, there’s always “What you’re supposed to do” based on, for example, the ABA opinion or the state bar opinion versus “What we see partners actually doing in terms of what’s in their best self-interest to preserve the portability of their clients.” And sometimes these things really are at odds because there’s a tension between following the guidance and doing what’s in the partner’s own self-interest. And I see that come up all the time.

What do you see from your end regarding the competing interests among the partners, when trying to thread these needles at particular points in the process?

Tina Solis 

Certainly, and you’ve hit it spot on.

During the departure process, there are a lot of interests that are competing. And again, it’s situationally specific. But what I can tell you, in terms of the hierarchy, is that the attorney’s duty to the client trumps the attorney’s duty to his or her current firm and partners.

That’s one of the things that is clear throughout the case law and the ethical opinions: as attorneys and fiduciaries to our clients, the client’s interest always trumps all else.

But again, as you mentioned, Dan, there’s also, the competing interest of “Well, wait a minute … if I want to switch firms and go work at another firm, how do I make sure that I maximize my chances that my clients are going to leave with me, and that there’s going to be minimal disruption to the matters that I’m handling for them?” and oftentimes a difficult situation to navigate. That’s why I think it’s so important to have someone counseling you along the way, and to explain to you “whose interests trump what” in various specific circumstances.

There are competing interests there, as you well know, because we’ve done this together many times before. You can navigate those waters and you can get to the other side safely while meeting all your clients’ interests and also maximizing your own self-interest. There are ways to do it but it’s very situationally specific. It’s always good to have the best advisers on your side when you’re going through this process.

 

Dan Binstock 

Absolutely. I had a partner candidate who was convinced that he could not do something and I had him speak to you. I was pretty sure he could do this but I just wanted independent counsel. He spoke with you, he realized that he could do it, and that was a big relief. You were able to give him the practical advice on that, which makes a big difference.

3. Ethical Considerations When Moving

Dan Binstock 

Now we’re going to really dig into ethical issues. At what point in the lateral process do they really start to become relevant and triggered? When should someone start to become aware?

Tina Solis 

I appreciate you bringing this question up, Dan, because I find the sooner a client gets me involved in this process, the better, because that gives us a longer runway to plan the process when timing and sequencing are very important.

Ethical issues start much earlier in the process than most people realize. Typically they arises when a partner is filling out lateral partner questionnaires from firms that they may be interested in joining. During that process, you have to decide, what information do I include? How much can I include? You have to walk that fine line between providing the firms with information that’s relevant to your practice so metrics can be discerned, while at the same time maintaining the confidentiality of the information from your current firm.

So typically, that’s when it arises. I’m also going to give you an example that may happen not often, but I’ve seen it time to time, much earlier in the process. You may be an individual attorney and you’re thinking, now may be a good time in my career for a move, the market’s very robust and maybe a bigger platform is the way I want to go.

I had this situation happen just two weeks ago. An attorney’s thinking about moving, and he or she gets a call from a client who says, “Attorney, I want you to handle this project for me – it’s a deal.” And XYZ firm is on the other side. And XYZ firm just happens to be one of those firms that the attorney is interested in exploring. In that situation, the attorney did the right thing. They called me and they said, “Tina, what do I need to do? Can I move forward? Or do I need to hit the pause button?” I won’t divulge any further facts, but in that particular situation, we decided it was best to hit the pause button.

Thankfully, this person was just starting to think about this possibility. It was early in the process, but you never know when an ethical situation may arise. Once someone has spoken to you about a move, I strongly encourage them to reach out to someone with ethical expertise, because you never know when that might be a bump in the road.

Dan Binstock 

During the interview process, is there any sort of burden that partner should disclose less at the beginning but can disclose more later? Because by the time you’re through the LPQ, they know a lot about your practice. What is appropriate when talking about your existing clients, your existing rates with clients, and whether you’ve got a client that you’ve negotiated a rate that’s significantly below the market value? What are some of those things that partner should be aware of during the interview process, but before they get to the LPQ?

Tina Solis 

Certainly. Each firm has its own system, but if you do an initial interview, it’s important to keep client information at a very high level. In other words, there are ethics opinions that say an attorney is entitled to disclose just the name of the client for conflicts purposes, when he or she is looking for other employment. When you’re in the interviewing process, it’s important to talk about information that you can say off the top of your head. Because you have an obligation to be truthful and accurate when interviewing, from a full disclosure standpoint it’s important to talk about your general rate structure, your range. If there is a client for whom you have a negotiated rate, I would talk about that at a very high level.

Depending on the circumstances, if you think it’s appropriate at that time, let the firm know the client’s name. If you don’t think it’s appropriate yet, just talk about it at a high level. It really is a balancing act of maintaining the confidentiality of the current firm’s information while also being truthful and maintaining disclosure with the firms, with your guidance and with an ethics adviser. I think it’s a line that attorneys walk all the time, but it’s always helpful to have that guidance behind them.

Dan Binstock 

Say the firm wants very specific information, and threading that needle without looking like you’re being cagey, or like you’re withholding because it doesn’t appear to be positive, when in actuality you’re trying to just honor the ethical obligations. And that’s where it all gets very murky.

4. Communication with Partners and Associates

Dan Binstock 

In terms of the interview process, I have partners all the time who say, “You know what? I was talking to this new firm, they said that they could use one or two associates. I’m going to go talk to these associates to see if this is something,” and I say, “Whoa, whoa, whoa, stop, stop, stop.”

Can you give us some detail on who partners are able to speak to at their own current firm about a possible move and the different levels of fiduciary duties as it pertains to the different tiers of lawyer or staff?

Tina Solis 

Another great question. This is an issue that inevitably comes up every single time. There are state-specific rules, but generally, if you are what’s considered an income partner, or an equity partner, you are entitled and allowed to talk to your other partners about a move. You are not violating your ethical or fiduciary obligations to speak to other partners.

However, in today’s world, there are multiple titles within a firm. We now have counsel positions and  associate positions. Generally, I draw the line at if you’re a partner, you’re allowed to speak to your other partners if you are thinking about a move. There may be associates or counsel positions or staff, and you are not permitted, generally, to speak to those individuals prior to departing. If an attorney were to do so, he or she would be violating one of their fiduciary obligations.

Again, these are part of the do’s and don’ts that we talk about during the departure process because in today’s world, oftentimes groups move together. They have a cohesive team that they’ve been with for a long time. While it’s very important to enable a group to make that happen, you have to do it the right way without violating any of your obligations.

Dan Binstock 

Does this obligation to not speak to anybody other than a partner include anybody else? Paralegals, legal assistants, secretaries, any kind of assistant — at what point are they able to talk to them?

Tina Solis 

You have touched on one of my favorite topics, because it always comes up. Generally, to use a legal term, the bright line rule is you cannot solicit any of those people or speak to any of those people about joining the new firm until after you have left your current firm and joined the new firm. We all know there’s the bright line rule and then there’s the reality and the practicality of how this plays out.

Now, here’s what makes this area of the law so murky. We don’t operate in a silo. The minute notice is given in today’s work-from-home environment, you immediately get calls. Your associates, your staff members, your team, they’re concerned if they hear that a partner is moving. I always advise my clients to say, “Listen, I appreciate the call. It’s great hearing from you. I’m a partner with fiduciary obligations at my current firm. You have to understand that I’m going to abide by those obligations. But I’m happy to speak to you when I am able to do so at the new firm.”

Dan Binstock 

“And I love you and nothing could make me happier than imagining a future together.”

Tina Solis 

Exactly. That is exactly right. Again, you have to find a way to adhere to your obligations but also understand the practicalities. You don’t stop talking to your teammates the minute you make your announcement. Oftentimes, in these situations what I will say to clients is, “Listen, if it’s a situation where you’re leaving, it’s you and several of your partners and it’s a group, and the current firm recognizes that the group may be leaving, right up front, you may want to say to your current firm, ‘Listen, you know, I’m going to respect the obligations set forth in the partnership agreement, and I’m certainly going to abide by my ethical obligations. But if it would be okay with you, may I talk to Associate A, Associate B, Associate C?’”

The key here to doing this in an amicable way is to be transparent with your current firm. “This is what I would like to do.” And oftentimes, the firm will say, “Yes, that’s fine. We don’t have a problem.” If they do have a problem, they’re going to let you know.

I’m a big believer in transparency. This is why I tell clients, be upfront, let the firm know what you want to do. We work in a small legal profession, so you try to do this with transparency and you try to do it so no bridges get burned. You want it to be amicable.

Dan Binstock 

That’s great advice, Tina. And so many times on my end, I think people get scared, they don’t know how the firm is going to react. Taking the high road really is a smart business decision in so many ways. When people start thinking about what’s going to be best for their practice in the next 30 days, rather than over the next 12 months, fight-or-flight thinking takes over and they start making poor judgments because they get so panicked. “Oh my gosh, if all this business doesn’t come with me during the first 30 days, as I promised on the LPQ, I’m going to be like that partner at my current firm who came over and promised this, and they didn’t have that business. We’ve all been talking behind their back about how frustrated we are that they’re in a two-year guarantee.”

A lot of people really get themselves unnecessarily panicked. Part of the role that we play is to try to keep an eye on the long game.

Tina Solis 

That’s exactly right, and let’s be upfront: attorneys have very stressful jobs. You add the additional stress of thinking about a move and it’s two full-time jobs. You’re right, Dan, our job is to talk to them, walk them through this and say, “Listen, you have to keep your eye on the long game here.”

I tell clients when they first retain me, “I counsel very conservatively, I don’t believe in walking too close to that line. It’s not comfortable for me, and trust me, it won’t be comfortable for you. You want to take the high road, you want to do the right thing. It’s going to work out much better for you. You have to trust me on this one.”

I can’t tell you the number of times where someone has called and they’re very concerned about issue X. I say, “Oh, that’s an easy one. This is exactly how we handle it.” Two minutes later, they say, “Oh, my goodness, that makes me feel so much better about this.” Now we’re not only doing it the right way, but we’ve relieved their concern and their stress.

5. LPQ and Due Diligence

Dan Binstock 

Let’s talk a little bit about the LPQ and due diligence. We’ve discussed general client information, but a lot of LPQs nowadays say list your client list, your billings, your collections, your realization rate, your standard rate, your effective rate for the past three years for every one of your clients. They all have very similar questionnaires. Is it okay to share that? And if it’s not okay, according to the rules, what is the risk/reward? I cannot see a partner coming back and saying, “I’m sorry, I can’t share this, because this goes beyond my ethical duties.” That’s going to probably sink the deal.

What do you advise? First of all, is it okay to ask to answer that information? If it’s not technically okay, in some jurisdictions, what is the real-world advice on this?

Tina Solis 

Certainly. Let’s start out first with compensation. There are some states that have enacted laws that say you don’t have to provide your current level of compensation if you don’t want.

Dan Binstock 

Does that apply to owners or employees? My understanding was that it applied to employees, but it’s unclear as to whether that applies to income partners or hybrid-income partners.

Tina Solis 

You’re absolutely right and your assessment is consistent with my current understanding. Again, it’s balancing what the statutes say versus real-world advice. I have had situations in which clients do not feel comfortable providing that information. I will tell you personally, I think it makes it more difficult to get a deal done if that information is not provided. Ultimately, for owners or partners, the decision is up to them, but again, it’s another hurdle or an item to consider in the analysis.

Let’s jump more directly into information regarding billing rates, clients, and realization rates that the LPQs always ask. Again, you have to balance your obligations with the practicalities of providing information. If you want to make a move, I think the biggest takeaway is do not attach reports from your current firm. Please, please, please do not do that.

Dan Binstock 

Can you please clarify what you  mean by the “report”?

Tina Solis 

Oftentimes in today’s world, when you work for a firm, you get monthly reports. Here’s the number of hours worked on this matter. Here’s all the team members and the hours they generated for this client. Here’s the overall revenue generated on a monthly basis, a quarterly basis, an annual basis. Everyone gets their metrics before they do their self-evaluations. Please do not take those reports from your current firm and do not attach them to your LPQs, that would be a violation of your fiduciary obligation.

Having said that, if you have a practice and you’ve been doing this as long as I have, you have a very good sense of what your rates are, who your team members are. If you have a special rate for someone, the ethical opinions allow you to include the name of clients for conflict purposes, so do your homework. I know the LPQs can be lengthy, but don’t take the easy way out. If you take the easy way out, chances are you’re violating your fiduciary obligations. Sit down, do the homework yourself, synthesize that information, and then complete the LPQ to the best of your ability. Trust me, you’re speaking with firms that don’t want you to violate your obligations, either.

There are representations and warranties in these offer letters from the new firms that I didn’t see five years ago. There’s a right way to do this where you can navigate these waters and get to the other side. Be smart and think carefully about it.

Dan Binstock 

Anything that has your firm’s name on it, your firm’s logo on it, any kind of stamp on it—like a document number—just copy and paste the relevant information and put it into a separate document and take all that other stuff out. Even that’s better than then then giving the document itself because it’s the same information. You must make sure you’re not giving any more than what is asked and what is needed. When it’s got other people’s names on it, stay away.

Tina Solis 

That’s right, you must be very careful in the information that you share. You want to complete it to the extent that you can move to the next step in the process. But I’m also a big believer in not giving too much up front in the process.

One thing that we always see in today’s day and age is the request for client referrals. I think that’s something that attorneys who are contemplating a move need to consider. I’m not saying don’t provide that information, but there’s a right time and place to provide that information — and it’s not when you’re looking at five or six different firms at the outset.

When you initially complete the LPQ, say those will be provided at the appropriate time. Once you’ve worked with Dan, you’re getting towards the end, it’s down to one to three offers being made, and you’re seriously doing your final analysis and comparison, then I have no problem disclosing that. That is a piece of information that belongs in the latter part of the process, when you’re getting much closer to making a final decision.

Dan Binstock 

I have a follow up on that. So in terms of disclosing versus having the new firm call them, tell me when things start to shift on that analysis.

Tina Solis 

So it’s one thing to say in the LPQ process, I represent ABC company, I represent XYZ corporation. That’s completely fine to do and allowed under the ethics opinion so conflicts can be run. For someone like me, who is a litigator, that’s easy to do, because those case captions are publicly filed information, anyway. However, in the distinction for client referrals later in the process, I need identification of who at ABC Company can be contacted by these prospective firms, and disclosing Mr. or Ms. GC, at company ABC, is something that should occur much later in the process.

Dan Binstock 

Okay, so you’re saying identifying the people, even if they’re not going to call them, should not be shared until later?

Tina Solis 

I think that’s right, because unfortunately, I’ve run into some situations in which the firms that are considering the candidate may have pulled that trigger too early in the process, and that’s not beneficial for anyone, right? So I find that if the candidate holds that information until the end, you’re minimizing the risk that a telephone call is made a bit too early in the process.

Dan Binstock 

Right. Even if the document says, “Please be assured we will not call any of your contacts without your explicit permission,” you can never be too careful.

Tina Solis 

You can never be too careful, especially in this process because it is so highly confidential.

Dan Binstock 

Exactly. So is it okay for a firm to call a reference? Let’s say someone’s down to the end with a firm, and they say, “We just like to check, we’re not going to ask the questions we’re not allowed to ask in terms of, ‘Will you send business?’” If they just want to check this person out, when are they permitted to do that before the partner notifies his or her partners?

Tina Solis 

So again, I counsel very conservatively, but I also understand that the firms want to verify certain information about the candidate. In my perfect world, it occurs as close in time to the attorney providing their notice of withdrawal as possible. What does that mean? Again, I’m going to give the answer that no one likes, it depends on your situation. I do prefer that to be as late in the process as possible, just to protect not only the individual candidate, but also to protect the clients and to protect the new firm as well. No one wants to be accused of tortiously interfering with anything.

6. Accepting an Offer

Dan Binstock 

Yes, absolutely. Thank you. Great answer. Why is accepting an offer such an important piece of the process?

Tina Solis 

It signals to the new firm, “I’m on board, I’m ready to move forward with this,” from an ethical standpoint and a legal standpoint as well.

I never want any of my clients “working for two firms at the same time.” You want to sign that offer indicating you are going to make the move. You want to provide notice to your current firm as soon as possible after you sign that offer so you’re not working for two firms at the same time.

I talked about timing and sequencing, and how important that is when doing this process the right way. Once the acceptance of the offer comes, it triggers all the other events after you’ve provided notice to the firm: who you can speak to and when, all of that. So yes, accepting the offer is very, very important. Again, that should be done after you’ve done the analysis and comparison of all the offers you have.

I typically don’t recommend that my clients sign an offer if they’re still waiting on others. I think it’s much better to do your apples-to-apples comparison before you decide to sign an offer. Again, we’re doing this in a way that meets all your fiduciary obligations. It’s a small legal community that you work in. You never know what 10 years can bring down the road, what 20 years can bring. And you wouldn’t want to jump the gun and sign an offer, then another one comes in and change your mind.

I always advise my clients, try to get them all in as close in time as possible, analyze them, and then make your decision.

7. Can You Accept Well in Advance of Giving Notice?

Dan Binstock 

I’ve got a tricky question for you, but I know you can handle it. Let’s say it’s October. You know where I’m coming with this.

Tina Solis 

I know exactly where you’re going.

Dan Binstock 

It’s October. Partner decides they want to move to X firm. They don’t want to move before February because their final distribution comes out between October and February. They’ve decided they want to move to that new firm. What should they say to the new firm in a way that signals their strong intention, but also keeps them from running afoul of any potential paper trail that could exist and come back and bite them?

Tina Solis 

Yes. So in that situation, purely hypothetical, I’m not talking about a specific jurisdiction’s law, or the specifics of a partnership agreement. I’m answering this very generally, because knowing what law governs and where that attorney is could impact this decision. All those caveats.

Very high-level hypothetical, what I would say to that attorney is, “Please do not sign the offer letter at this time, that’s not in your best interest or the new firm’s best interest despite what they might think. I would send a strong verbal signal to the firm that you want to join that you have every strong intention of joining in February, and that is your hope, but I certainly would not sign an offer in that situation.” It is a very difficult position for that individual if they were to do so. I’m a big believer in not creating any headaches that you don’t have to have at that time.

Dan Binstock 

Is there anything I missed to ask about the acceptance process?

Tina Solis 

I think we’ve covered it at a very high level, Dan. Once that acceptance does get signed, it triggers the notice to the current firm. That’s really when I start having fun because again, timing and sequencing at that point is critical.

8. Best Practices When Giving Notice

Dan Binstock 

Tell us about the notice process. What is the role that you play during the notice process? What are some of the mistakes you see when giving notice, the best practices and the worst practices?

Tina Solis 

Giving notice, again, should be as close in time to signing that offer letter as possible, because you never want to be questioned as the departing attorney, whose interests were you serving during that time?

Dan Binstock 

Riding two horses.

Tina Solis 

Exactly. So notice is very important, because there are typically notice requirements in the partnership agreement that must be met. There are also typically notice periods in partnership agreements which most firms will try to enforce.

Now, the ethics opinion that came out in December, 2019 from the ABA basically said, notice periods can no longer be a specific amount of time. Oftentimes, the partnership agreements say 30 days, 60 days, 90 days. What the new ABA opinion said is, listen. The amount of notice that partner should have to give needs to be consistent with properly notifying the clients and determining whether those client matters are either going with the departing attorney to the new firm or staying at the current firm, or perhaps — this is rare but it sometimes happens — going to a new, third firm.

Once the effective transition has been made and the clients have made their decision regarding the files, you really should not hold an attorney past that process. These artificial 30, 60, 90 days are not something that we can rely on anymore. That was a very important ABA opinion that offers guidance on this issue.

So what I would tell the departing attorney from a best practices standpoint is, make it as close in time to signing your acceptance. Consider what client matters you have, impending deadlines coming up, knowing that there is going to be a period of time if you have to remain at your current firm.

Clients say to me all the time, “Tina, there’s no perfect time to leave. I have deadlines every day.”

I appreciate that, but look for the big deadlines. You probably don’t want to be giving notice, if you have a matter that’s going to trial in the next two weeks. You probably don’t want to be giving notice if you have a big deal that is closing three days after you give notice. Be mindful that you may have to stay at the current firm for a while. Most importantly, know how to properly give notice and make sure that it’s comporting with the partnership’s requirements.

Now, let’s talk about what you can say to clients. The end all, be all rule in this part of the practice and area of law is there is no pre-resignation solicitation of clients. Any departing attorney who solicits clients before they have provided notice to the firm is committing a breach of their fiduciary obligation to the firm. That is the preeminent takeaway: no pre-resignation solicitation. There are ways in which you can provide your notice that is consistent with ABA guidance, but generally, you need to take your current firm’s guidance on when you can speak to the clients and what you can say to them.

Dan Binstock 

Say a partner has a big client they’ve been representing for 20 years. All of a sudden, client’s going to get a call from potential new firms, “I’m just calling to talk to you about so and so.” The partner is going to need to give the client a heads up that they’re going to be getting a reference call, which for all intents and purposes, is not going to be a solicitation, but a notification to the client that I might be moving. If they’re smart, they’re going to do more than just drop this bomb on a client and leave it at that. You don’t need to answer this, but we’re acknowledging that may be a murky area to navigate.

Tina Solis 

Yes, it’s a very murky area in terms of dealing with the client referrals. It’s a situation I would recommend seeking guidance on if you’re moving. The same thing is true for providing notice to the clients once you have given notice to your firm that you’re leaving. There are tried and true ways of doing that with joint client notification letters. That’s something that I routinely assist my clients with, so there’s very right ways to do this and there are wrong ways to do this.

Don’t feel as though, “Oh my goodness, I went to law school, I passed the bar. I’ve been practicing for many, many years. I can’t believe I don’t know any of this stuff.” This is a very particular area of the law. In certain jurisdictions, not particularly well developed. I just urge you to get proper guidance on this because these are tricky situations. These are areas to which firms are paying particular attention, when 10–15 years ago maybe they were not monitoring it as closely as they are today.

Closing Thoughts

Dan Binstock 

Do you want to give some closing thoughts on this?

Tina Solis 

Here’s what I would just say in closing, because we covered a lot of ground. I would say for those of you are thinking about a move, don’t be scared to engage in exploring those options, because you can successfully make a move. Yes, there may be some murky areas and some tricky things. But with the proper guidance, it’s done all the time and it can be done successfully. I certainly would not want anyone to shy away from this, because there are people out there, like Dan and myself, who can help you with this and make the move easier.

Dan Binstock 

Wonderful. Well, thank you, Tina, you are wonderful. Always a pleasure speaking with you. I’m so grateful for the time that you spent and all this information you share. I know that the people watching this will appreciate it as well.

Tina Solis 

Well, Dan, thanks so much for having me. And I look forward to hopefully being able to see you in person soon again.

Dan Binstock 

Yes, absolutely.

Contact

Tina Solis: 312-977-4482 or tbsolis@nixonpeabody.com
Dan Binstock: 202-559-0472 or dbinstock@g-s.com

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Picture of Author: Dan Binstock

Author: Dan Binstock

Dan co-owns Garrison & Sisson, where he focuses on lateral partner and practice group placements. He has consistently been recognized as one of the Top 100 Global Legal Strategists and Consultants by LawDragon, and authored "The Attorney's Guide to Using (or Not Using) Legal Recruiters." Dan is the Immediate Past President of the National Association of Legal Search Consultants (NALSC), where he also served as Chair of the Ethics Committee. Visit here to learn more about Dan, or contact him confidentially with any questions at (202) 559-0492 or dbinstock@g-s.com.

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