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Jumping Ship (and Taking the Crew): Can Law Firm Partners Solicit Their Firms' Employees?
Recently, several prominent partners have left their law firms to set up shop with a competing establishment. See James Illman, 'Sonnenschein Raids Kilpatrick to Enter Charlotte' Legalweek.com, April 30, 2007, available at www.legalweek.com/Articles/1024830/Sonnenschein+raids+Kilpatrick+to+enter+Charlotte.html; Nathan Koppel, 'Mayer Brown Employment Lawyer Jumping to Weil,' The Wall Street Journal Online, Law Blog, April 24, 2007, available at blogs.wsj.com/law/2007/04/24/mayer-brown-employment-lawyer-jumping-to-weil/. As was the case in each of these instances, a partner seldom leaves the firm alone ' often staff, associates, and even other partners join the new endeavor. May a departing partner solicit others to join him or her without violating fiduciary duty to the original firm? At what point must the departing partner notify the partnership of his or her efforts to recruit firm employees? This article suggests that partners may solicit attorneys and staff of their original partnership without violating their fiduciary duty, as long as the manner of their solicitation conforms to their fiduciary duty.
Scope of a Partner's Fiduciary Duty
Without question, law firm partners owe a fiduciary duty to the partnership. This fiduciary duty has been variously characterized as one of 'the utmost good faith,' Holman v. Coie, 522 P.2d 515, 523-24 (Wash. Ct. App. 1974), one of the 'utmost good faith and honesty in all matters relating to the partnership business,' Winston & Strawn v. Nosal, 664 N.E.2d 239, 244-45 (Ill. App. Ct. 1996), and an 'obligation of loyalty to the joint concern and of the utmost good faith, fairness, and honesty in their dealings with each other with respect to matters pertaining to the enterprise,' Bohatch v. Butler & Binion, 977 S.W.2d 543, 545 (Tex. 1998). Justice Benjamin N. Cardozo's famous statement of partners' high fiduciary duty to one another has been repeated time and again: 'Not honesty alone, but the punctilio of an honor most sensitive, is … the standard of behavior.' Meinhard v. Salmon, 249 N.Y. 458, 463-64 (1928).
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