When a senior lawyer decamps for a new firm and takes a junior colleague along, the management at the original firm sometimes gets salty. Christopher Sweeney, the CEO of ZSA Legal Recruitment, often reminds partners who quit their firm to read their partnership agreement closely. Buried in the fine print, they just might find an anti-poaching clause, which forbids them from actively recruiting colleagues to work in their new office.
Of course, there’s nothing stopping a junior colleague from seeking to work alongside a former mentor. And if the mentor is happy with this turn of events and had been hoping it would come to pass? Well, there’s no law against happiness. “What you can’t do,” says Sweeney, “is go around to your colleagues at Firm A saying, ‘Hey, I’m moving over to Firm B. Do you want to come with me?’”
In the past, most firms haven’t bothered to enforce anti-poaching clauses for fear of seeming petty. But recently, they’ve become more aggressive, sometimes withholding a partner’s capital contribution and bonus pay as a means of punishing a perceived act of poaching. Occasionally, such disputes wind up in court.
So what should senior lawyers do if they’re hoping to reunite with a mentee but don’t want to run afoul of an anti-poaching clause? First, they should observe the distinction between approving of a hire and actively facilitating it. If a mentee expresses an interest in working with them, they shouldn’t promise a position, but they might subtly remind her of her democratic right to apply for any job she’d like. The trick, says Sweeney, is to speak judiciously. “And be very careful about what you put in writing.”
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