Biglaw

An Interesting Dilemma For Laid-Off Lawyers

What advice would you give to this associate caught between a rock and a hard place?

By David Lat on June 15, 2015 6:04 pm

The readers of Above the Law are a pretty smart group. So it’s always interesting to hear what you have to say when presented with challenging situations. In the past, you’ve given wise advice to colleagues facing a wide range of professional and personal issues, such as partners who don’t play by the rules and crippling addiction problems.

Today we share with you an interesting query from veteran legal recruiter Dan Binstock of Garrison & Sisson in Washington, D.C. As you may recall, Binstock moderated an interesting panel at the most recent NALP conference called “Something Smells Funny: How to Spot When Candidates Aren’t Telling You the Whole Story.” The situation from him that we present below could be viewed as an offshoot or extension of the issues raised in that panel — but this time from the perspective of the lawyer making the lateral move, not the firm on the receiving end.

Here it is. Feel free to share your insights in the comments.

Mid-level Associate works at Firm A in the, say, telecom litigation group. The associate has received positive reviews but after a few cases settle, the work slows down considerably. After a six-month period of a slowdown in work and nothing new on the horizon, the firm gives the associate notice and provides four months to find a new position. The firm offers attractive severance and will “do everything it can” to help the associate find a new job by keeping him on the website, providing access to email and voicemail, keeping up the appearance of full employment, and providing a good recommendation. He doesn’t need to come into the office of he doesn’t want, and he should focus on finding a new position. But in order to get the severance package and the firm’s cooperation in the appearance of still working at the firm, the associate must sign an agreement that includes, among other things, a confidentiality clause prohibiting the associate from mentioning he was asked to leave or any circumstances surrounding this. (Obviously, the firm wishes to limit telegraphing to competitors in the city that it is laying somebody off due to a slowdown in work/weakness in the practice.)

So when this associate interviews with a new firm, Firm B, and Firm B asks, “Why are you leaving?” the associate is placed in a no-win situation. He either complies with the separation agreement and is forced to tell a fib to Firm B about the real reason for leaving (“I am, um, looking for a firm that will provide more growth opportunities?! Yeah, that’s it.”). And if the interviewing attorney smells something suspect, which usually happens, the interviewer may pointedly ask, “Were you asked to leave?” At this point, it gets even more uncomfortable. Even if the interviewing attorney lies and says “no” and Firm A (which made him sign the separation agreement) supports the story, the interviewing attorney has this burden hanging over him: “What if Firm B somehow finds out the truth at a later point? Will I be in trouble for not telling the truth during the interview?”

And if the if he folds and comes clean about the circumstance (“I was asked to leave due solely to a slowdown in work — I even have positive reviews I can show you — but please keep it confidential because I signed an agreement with a gag provision.”) there are two obvious risks: 1) he violated his agreement with Firm A, which makes him nervous about losing the much-needed severance, and 2) the new firm may view his being laid off as a non-starter, even though it was due to an alleged slowdown (some firms have a strong stigma that “the good associates don’t get asked to leave; firms cut only the lowest performers.”).

Any thoughts on this no-win situation for the candidate?

Earlier: When Partners Ask Associates Not To Record Time . . .
A Biglaw Associate’s Terrible Dilemma