As a Kentucky lawyer observed recently, layoffs of lawyers during the current economic decline resulted in making many good lawyers available for lateral hire in Kentucky. For this reason the portions of the program High Tech Tools – and Traps – for Mergers and Lateral Hiring concerning risk management for lateral hires and departing lawyers should be useful information for Kentucky lawyers.
As a refresher here are some of the risk management considerations for firms when making a lateral hire:
* This list is derived in part from the following materials used in the ABA 26th National Conference on Professional Responsibility program On The Road Again: “Insurance Issues Related To Lateral Hire Musical Chairs,” by Professor Susan S. Fortney, and the Alexander & Alexander article “Evaluating and Managing the Risks of Mergers, Acquisitions and Lateral Hires” edited by Anthony Davis.
Program panelists emphasized that technology tools provide excellent ways to investigate and evaluate candidates, streamline the application process, consider conflicts of interest and screens, and ethically integrate into the firm client files, forms, and electronic devices such as thumb drives, laptops, and cell phones the candidate will bring to the firm. These tools includes electronic files management programs, conflict of interest programs, and Internet search engines. If technology is not used effectively in the hiring process, it can result in firm and public relations problems, and the Three “D”s – Disqualification; Discipline; and Disgorgement.
Technology tools are equally useful in out-processing departing lawyers by coordinating what client information, work product, and other documents may be taken electronically from the firms IT system. The panelists stressed the importance of conducting an exit interview to assure that the departing lawyer and firm are in agreement on these issues.
The materials provided with the program included risk management guidance for these issues. What follows is a gloss of the key points:
Electronic Data Intake Acknowledgement
Before loading any electronic documents onto the firm’s computer system, require the new attorney bringing paper and electronic documents to certify in writing that the documents and electronic files conform to the firm’s guidelines for loading new documents on the system using an Electronic Data Intake Acknowledgement form:
Sample Form: This document acknowledges that I have been given a copy of the Firm’s technology and data policies for arriving attorneys and have read and understood the contents. I agree to abide by the rules and procedures set out in these policies. I agree that the list below is a complete and accurate record of all data that I will be bringing into the Firm, and that all listed data meets the Firm’s policies.
Signature ___________________________________________Date ___________________________
Printed Name _______________________________________________________________________
Data Device (e.g. flash drive, CD)
Format (e.g. .doc, .pdf)
Nature of Data
A firm should not accept documents into its records system or computer system that are not documents of the firm’s clients. Accordingly, attorneys who arrive at the firm from other law firms should not bring with them files, e-mails, or documents of clients of their former firm moving with them unless and until the clients have cleared conflict checks. The firm should not accept documents that were removed from an attorney’s prior firm without that firm’s permission.
Arriving attorneys may have personal specimens, exemplars, or form files that the attorney has developed. Such documents will be accepted provided they do not contain confidential information regarding persons or entities that are not clients of the firm, and provided that the documents are not the property of the attorney’s former law firm.
Frequently attorneys leaving a firm for employment at other law firms require information about matters on which they worked to permit their new firm to do a conflict check. It is good policy to assist departing attorneys in performing conflicts checks in a manner that does not require disclosure of client-confidential information.
Because it may not always be known whether a particular matter on which the attorney worked was one that the client did not wish disclosed, the following steps should be taken in dealing with the departing attorney: