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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 02:49 PM | Permalink | Comments (6)

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