Disclaimer: Ethical obligations under the applicable professional rules of conduct in your state or jurisdiction may impose additional or different obligations than those discussed below. Be sure to thoroughly review those rules, and consult with counsel if your situation calls for it. This article focuses solely on some of the statutory and common law causes of action that may arise against departing employees, discussing them in general terms.
Every time I see a random number on my office caller I.D., I secretly hope it's Publishers Clearing House calling to tell me Ive won $7,000 a week for life. (Yes, that's still a thing.) But it never is.
Instead, it's usually a recorded telemarketer asking if Im happy with my Medicare Part D coverage or a recruiter telling me about open positions Id be a great fit for in the [insert location] market. Given the noticeable increase lately in the latter, it seems like lateral hiring season must now be moving at full tilt. So, I thought itd be a good time to outline some things employees (including associate attorneys) should not do before and after leaving their current employer.
Dont compete with your employer before leaving.
This is a big one. Before parting ways with an employer, an employee shouldnt use the employer's resources to secure a personal benefit. To do otherwise could breach the duty of loyalty an employee owes to his or her employer. For example, employees shouldnt make communications to clients or prospective clients comparing the rates or service offerings of their current employer with those of their future employer.
Some employees may assume that only managerial employees or owners of the business (e.g., partners) have a duty of loyalty to a company or firm. But that's not the case under the laws of many states.
As one court explained: [A]ll employees owe fiduciary duties of loyalty to their employers not to (1) actively exploit their positions within the corporation for their own personal benefits, or (2) hinder the ability of the corporation to conduct the business for which it was developed. Burke v. Lakin Law Firm, 2008 U.S. Dist. LEXIS 241 (S.D. Ill. Jan. 3, 2008). That case involved a departing non-partner of a law firm who purportedly breached his duties to his former firm.
Note that preparing to compete is different from actually competing. For example, some courts have held that opening a bank account or renting office space for a future employer is not a violation of the duty of loyalty. Harllee v. Prof. Serv. Indus., Inc., 619 So. 2d 298 (Fla. 3d DCA 1992). This distinction is important.
Dont solicit other employees to leave with you before your departure.
Another good way for you to breach a duty of loyalty is to solicit other employees to follow you before you leave. Employers get pretty upset about this. They invest a lot of time and money into their employees (most of the time), and when an employee goes around trying to get other people to defect, that can really get the company's attention in a bad way.
Take for example Nagle v. Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga, P.C., 613 N.E.2d 331 (Ill. App. Ct. 2d Dist. 1993). In that case, before leaving his former firm, a lawyer allegedly solicited another lawyer within the same firm to leave with him and start a new firm.
When the former firm found out, they were upset. Bigly. Among the former firm's claims for damages was the value (at least $100,000) of the firm's expected profits from the lawyer that was wooed away by the soliciting lawyer.
So, even if your work BFF confides in you that theyd totally follow you if you went elsewhere, be very careful not to actively solicit him or her before you leave.
Dont copy, remove, or delete any of your employer's confidential information.
I want to be clear: Im not talking about client information or files here, because the rules of professional conduct in your state or jurisdiction may allow (or even require) that attorneys take copies of or even the originals of certain client materials with them. That's beyond the scope of this article.
Instead, Im talking about things like marketing strategies, financial data, and other pieces of confidential business information that arent common knowledge or easily ascertainable from public sources. Taking such information and/or using it could constitute trade secret misappropriation under the Defend Trade Secrets Act and other state-specific trade secret statutes. Furthermore, if the conduct involves the use of a computer (which it most likely would), it could violate the Computer Fraud and Abuse Act and other state-specific computer crimes statutes.
If the information isnt something you can find in a quick Google search, it's probably a bad idea to copy, remove, or delete it. And, just in case youre not familiar with the sophistication of e-discovery techniques, it's often relatively easy to figure out if information and materials have been copied or otherwise tampered with (and by whom they were tampered).
Secretly copying information from a server to a thumb drive at your office computer isnt like Frodo's invisibility cloak. It wont hide what youre doing.
Dont bad mouth your employer (before or after your departure).
I think (read: hope) that most people realize that apart from any legal considerations, bad-mouthing a former employer isnt a great idea. Even if your complaints are well-founded, others may take you for a complainer or a whiner. Plus, some people may think, If Joe says these things about his former co-workers, what's he going to say about me? People may therefore lose trust in you. I think this is especially true in legal communities.
From an employment law perspective, if the comments are severe enough, a former employee's bad-mouthing of his or her former employer (or individuals working there) could possibly constitute defamation (although realistically, the comments would have to be pretty bad to be actionable).
For example, in one case a law firm sued a former associate who allegedly stated (incorrectly) that his former employer was in trouble regarding client funds. Im not sure how that case ultimately turned out, but Im sure it wasnt fun to litigate for either side.
If youre considering changing jobs, I hope youll consider the tips outlined above before, during, and after the process. Youve worked hard to get where you are in your career, and you dont want to jeopardize your future success by making an easily avoidable mistake.
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)