A lot of attention has been paid lately to lateral partner hiring and compensation, recently I sat down with Tina Solis, a top litigator at Nixon Peabody. In this article Tina shares what new trends are emerging in the legal landscape as we approach the new year.
In this active legal market, as law firms adjust and solidify their new work policies, they are also incorporating provisions into their partnership agreements to protect against departures.
Despite recent signs of a slowdown, the lateral attorney market continues to boom. With the ever-changing remote work landscape and the frequency with which attorneys are moving firms, law firms have increased their reliance on law firm partnership provisions to protect the firm.
With the fiscal year coming to a close for many firms, recruiters and attorneys must be cognizant of the provisions in law firm partnership agreements that can have considerable implications when an attorney decides to make a move.
- For instance, firms are including clawback provisions with regard to bonuses and/or advances/distributions paid to the departing attorney within a certain amount of time prior to their departure. Some provisions provide for a mandatory clawback, while others leave it to the discretion of the firm’s management. Such mandatory provisions are likely unenforceable under a forfeiture for competition argument but largely go unchallenged in the public arena because many firms have arbitration provisions in their partnership agreements.
- Firms are also changing how and when they pay bonuses. Rather than paying the bonus in a lump sum, many are choosing, instead, to pay out the bonus in installment payments at certain times throughout the subsequent year. This means that a departing partner either has to forego a certain amount of their bonus or wait to depart for a new firm until such time as the prior year’s bonus has been paid in full.
- Also, more frequently firms are including non-solicitation provisions in their partnership agreements to prevent additional departures. These provisions, for example, prohibit the direct or indirect solicitation of colleagues for a certain period of time after a partner leaves their current firm. Generally, however, these types of provisions are not enforceable post-departure.
How does this impact lateral recruiting?
In short, laterals need to be more precise about timing when making a move. Money is oftentimes forfeited or clawed back, so the new firm may need to provide a “make-whole” signing bonus or provide additional compensation to offset this loss. Consulting with counsel to address these issues and properly planning the timeline of a departure is crucial.
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About Tina B. Solis, Litigation Partner Nixon Peabody, Chicago, IL
Tina advises businesses on issues involving trade secrets, unfair competition and complex commercial litigation in state and federal courts. She also counsels lawyers and law firms on professional responsibility issues. Tina regularly represents regulators in federal court litigation related to the failure of banks.
Tina is also leader of the firm’s Financial Institutions & Banking Disputes team, which represents institutions and individuals in a full range of civil litigation, enforcement matters, Financial Industry Regulatory Authority (FINRA) arbitrations, and compliance investigations on issues such as consumer protection, fair lending, anti-money laundering, and violations of fiduciary duties.
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