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Can Law Firms Silence Terminated Associates?

In the Internet Age, everyone lives in a fishbowl -- and law firms are no exception.   As I've posted previously, it used to be that terminated or otherwise aggrieved associates would slip gently into the night, fearing that a highly-publicized lawsuit or outcry against the firm could kill their careers.  These days, however, associates realize that firms suffer adverse publicity when word of a termination hits high-traffic sites like Above the Law -- and that they can use the threat of disclosure as leverage to negotiate better terms of departure.

So what's a law firm to do? Some firms have proposed mandatory arbitration clauses, which may shield the gory details of a dispute from the spotlight. In contrast to a judicial proceeding, an arbitration does not have a public docket.   

Now it seems that other law firms are proposing "non-disparagement clauses" to prevent disgruntled, terminated employees from speaking ill of the firm after they're handed their walking papers.  As David Lat reports at Above the Law, Paul Hastings tried the non-disparagement approach after terminating an associate shortly after she suffered a miscarriage.  Lat published the associate's vent in full (apparently, the firm downgraded her performance review shortly before axing her) as well as the non-disparagement agreement. 

Generally speaking, non-disparagement agreements are enforceable, says Frank Pasquale at Concurring Opinions.  Even so, they won't work, where, as in the Paul Hastings case, the employee refuses to sign.  Here's what the associate had to say:

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months' pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don't need much help from me in damaging your reputation.

As for me, call me old-fashioned, but what ever happened to the practice of not burning bridges or keeping open possibilities with a former employer -- even where lawyers depart under less-than-ideal circumstances?  (The exception of course is where a firm has acted unlawfully; in these situations, a lawsuit may be necessary to punish the firm and deter similar conduct in the future).  At the end of the day, lawyers shouldn't need a non-disparagement clause to prevent them from bad-mouthing a former employer.  They should realize that in most cases, it's in their best interest.

Do you agree?

Posted by Carolyn Elefant on May 6, 2008 at 11:49 AM | Permalink | Comments (6)

Comments

My personal rule of thumb is: if you always behave honorably, you don't have to worry about what people will say about you.

People who push non-disparagement agreements in front of other people probably have plenty of need for them.

Posted by: Lawrence N. Rogak | May 6, 2008 2:55:12 PM

"At the end of the day, lawyers shouldn't need a non-disparagement clause to prevent them from bad-mouthing a former employer."

That may be true during the job search, but just going solely by the associate's email, the way Paul Hastings handled this was just abysmally stupid and not the least bit deserving of self-censorship.

Posted by: K | May 7, 2008 1:42:03 AM

Anti-disparagement clauses will be nothing more than a passing fad. A lawyer may have an ethical duty to reveal violation of the law or ethical standards. No clause could override that duty. The enforcement of the clause would have to be in a public forum, which leads back to the very fear that the clause was supposed to allieviate.

Posted by: Rod Heggy | May 7, 2008 6:47:06 AM

Bravo to her for not signing such a document. It is simply amazing how law firms - even small ones run bya single dominant partner - want everything for their convenience, even when there reasons for knifing an associate are spurious, superficial, or, in some instances, even illegal. Too many law firm types think they are above it all - they aren't. If the associate is competent, bad-mouthing a former employer is not going to be a big-ticket concern with a prospective employer. Gee whiz, they might even be interested in details so they can do some raiding for new talent. bottom line: If law firms don't like being disparaged by former employees, don't treat them like dog defecation.

Posted by: Wolfgang | May 7, 2008 9:54:19 AM

Though I'll admit I found the employee's email in bad taste, I think that bridge was smoldering long before she sent her missive. The proposed agreement contained a clause that I found both interesting and disturbing. Paul Hastings inserted a clause into the agreement that declared the employee would never seek employment with Paul Hastings again, unless the firm invited her to apply. Such a clause smacks of termination for cause - not merely a layoff or downsizing. And if the firm so much wants to ensure they never have to deal with you again that they forbid you from sending them a resume, I don't think you have to worry too much about burning bridges. After a clause like that, should one expect a good recommendation to another potential employer? Not unless the firm acts duplicitly.

Posted by: Brad | May 8, 2008 7:20:37 AM

I agree with Brad. Any bridges allegedly burned by this associate had already been pre-burned by the nice guys at PH. I have to wonder, though, what role the non-disparagement clause played in provoking the very disparagement it was intended to quell.

Posted by: Xrlq | May 8, 2008 1:34:58 PM

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