When it's necessary to terminate a lawyer

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Published on 12/11/06

Plenty of news stories attest that associates are not satisfied with their lot in life, particularly at large law firms. The current business model of these firms "eats 'em up and spits 'em out." This "culling process" gets inexpensive labor (despite what seem to be high salaries for young talent) for several years. Then, if they don't make partner, they're asked to leave to make way for the next group of law school graduates.

One might argue that the associates know what they're letting themselves in for when they join a large firm. I'm sure many new law school graduates participate in the charade with hopes of becoming one of the small group that earns more than $1 million a year. Some may even be aware of the large psychological and social cost (such as the sacrifice of marriages and family time) to get there. But most human beings are optimists (until they conclude otherwise), and I suspect most young associates believe the sacrifices are worth it because they will be among the select few - right up until the moment that they are shown the door.

If a law firm feels it's necessary terminate an associate, particularly one who has not attained the level of desired quality, how should it be done? Every firm should have a severance policy for non-partner lawyers - written guidelines that describe the procedures for addressing a lack of or deterioration in service or performance. The firm should also have a standard severance package based on length of service, reason for termination and other considerations. The package should specify a certain number of weeks in compensation and the equivalent in benefits. Although, in most States, associates serve at will and can be terminated for cause, it is wise for a firm to provide a minimum of two weeks compensation and note on the check that it is for vacation and all accrued benefits earned to date.

In addition to financial arrangements, plan for handling the act of dismissal. Once notice is given, permit the associate to gather personal belongings and then escorted out of the office. It is appropriate that the managing partner or executive director should deliver the termination notice, and then no longer maintain personal contact with the associate during that day. To defuse any personal animosity that might arise as a consequence of the termination, another trusted employee, staff or counsel (usually of the same gender) should be selected to maintain constant contact with the terminated associate and provide an escort from the premises.

Such an approach maintains surveillance of the associate to prevent last minute photocopying of the firm's copyrighted or proprietary information and to prevent possible tampering and sabotage of the firm's technology. Even "good" folks who were trusted for many years may become vindictive once terminated, especially if they "didn't see it coming," no matter how many signs there may have been to an objective observer.

A final thought. This is definitely a worst-case scenario that the firm should avoid. The best approach is to hire the right person the first time for the right job and provide extensive education for that person to improve their skills.

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