At some point during their careers at BigLaw, the vast majority of associates decide–for a variety of reasons–that it’s time to get out of the rat race and move onto something else in their lives.  At that moment, an associate has mentally “checked out” of the firm even though he or she is still physically present.

This week, we delve into the exit strategy: the plan by which associates who have decided to leave their respective firms can find a new job without prematurely alerting the partnership of what is going on.  There’s a lot more to this process than you may first think.  Consider the following:

1) How do you interview at other firms or for other jobs without announcing your absence?

2) Do you use a headhunter or not?  What are the advantages and disadvantages?

3) If you do retain a headhunter, can he or she be trusted not to leak the information that you are seeking a new job?

4) Once you’ve been given an offer conditional on your references “checking out”, but one or more of those references has to be a partner at your current firm, how do you handle that situation?

5) What if the offer is dependent on clearing conflicts, which require client approval?

6) How do you avoid getting staffed on new cases during the process of implementing your exit strategy?

7) At what point in time do you give notice?  What is the most effective way to do so?

8) Are there terms that can be negotiated with your current firm after giving notice?  (The answer is yes!)

9) How do you explain your departure without burning bridges?

10) What considerations should you take into account with respect to current clients when you leave the firm?

These questions, as well as others, will be the topic of discussion for the next couple weeks.

See?  I told you it wasn’t that simple!


Today, we conclude our three-part mini-series on the mechanics of the stealth layoff.  We have now discussed the first two parts of the stealth layoff: establishing the record and informing the associate.  The final piece is negotiating for voluntary leave and is, in many ways, the most interesting aspect to the stealth layoff: it explains why stealth layoffs are “stealthy.”

So how does it work?

Often, but not always, the firm will offer the possibility for the associate to quit voluntarily.  If the firm doesn’t offer, you can always suggest it as well.  The exact terms of the departure can be negotiated, and depends on specific circumstances.  All of the following are possibilities:

1) Departure within a normal, two-week notice so there’s no suspicion of a layoff.

2) Removal from payroll immediately but opportunity to continue to come into the office in order to find a new job.

3) No access to a physical office, but firm provides continued access to e-mail, office phone (through forwarding system) and keeps attorney bio on firm website until a new job can be found

The weirdest story is that of an associate who was laid off but kept coming into the office to work and eventually made partner.  Go figure.

Why would a firm offer these incentives?

As much as Biglaw firms appear to fire or conduct layoffs of associates and staff with complete coolness and detachment, it’s never an easy task.  The vast majority of partners would likely rather be playing golf than sitting in their offices firing associates.  No one wants to be the bearer of bad news, justified or not.

Firms also feel like their reputations take a hit when a layoff occurs.  Especially during tough economic times, a layoff signals to the entire legal community that the firm is economically weak and potentially unstable.  In a world where Biglaw firms compete against each other for vital business, any indication of weakness is, at best, damaging, and at worst, fatal, to a firm’s reputation.

If an associate agrees to this arrangement, it’s considered a voluntary leave.  This makes it much more difficult for the associate to sue the firm later for wrongful termination.  For the firm, it’s another way to “litigation-proof” the layoff.  The downside for the associate is that, unlike a layoff which allows you to collect unemployment checks, a voluntary leave precludes the associate from taking advantage of such benefits.

Finally, when associates are publicly fired or laid off, that action sends shock waves through the firm and depresses associate morale.  Fear spreads through the firm like an out-of-control wildfire.  Am I next?  When is the next layoff happening?  When does the bloodletting stop?  Try working under those conditions when you find yourself surrounded by empty offices and a mortgage to pay.

For all the above reasons, firms would rather have the associate leave “voluntarily.”  It’s far more pleasant for the firm to maintain its pristine track record of never having fired or laid off anyone.

Why would an associate agree to this stealth arrangement?

First, it prevents a certain amount of embarrassment or humiliation from the layoff.  Second, it is much easier to land a new job if you can represent to your prospective new employer that you are gainfully employed and want to leave for reasons other than a forced termination.  Third, it provides a boost to your confidence.  If the pretense is kept up by both sides and no one else is wiser for it, you can start to believe that, in fact, you did want to leave voluntarily.

Sometimes, self-justification is the most important thing.

Next week: tactics for searching for and landing a new job while being gainfully employed at your current firm.

Today, we continue our discussion of the mechanics of the stealth layoff.  After the partnership has established a firm, iron-clad written record of the associate’s poor performance, it is prepared to move forward in informing the associate of the impending layoff.

Depending on the situation, a firm will sometimes attempt to “wean” the associate from work prior to an actual notification.  Other times, due to the state of the economy or other reasons, the targeted associate may have little work.  In fact, if that associate really does perform poorly and deserves to be laid off, it’s very likely that he or she has been struggling to find work for an extended period of time.  Either way, if the associate has little to no work, this situation allows the partnership a favorable opportunity to inform the associate of the layoff and quickly have the associate depart within days.

The more interesting scenario is when–for reasons too complex to discuss in this post–an associate is laid off based on largely fabricated reasons.  It’s well-known that during tough economic times, firms attempt to preserve their reputation by performing stealth layoffs that are ostensibly “performance-related” but really are driven by low business revenues.  The irony of this situation is that an associate who is in fact quite productive may be laid off with a group of other associates in anticipation of a worsening economic situation (and partners looking to protect their quarterly profits).  In this situation, the firm is left in the rather awkward position of informing an associate of an impending layoff but still keeping that associate around long enough to properly transition all of his or her cases.  It’s not a situation that the partnership relishes, so it’s a lot easier to inform an associate of a layoff if he or she is not busy.  Instinctively, this also explains why associates always attempt to “protect” their jobs by keeping themselves as busy as possible during tough economic times.  The more indispensible an associate can appear, the more reluctant the firm will be in delivering the axe.

When the axe does arrive, it usually does so in the form of a “meeting” with two partners.  Sometimes, it’s done during the annual associate review; other times, it is done so during a “performance evaluation” that is not part of the associate review.  Other times, it’s simply characterized as a meeting.

There are several reasons why two partners are usually involved instead of one.  First, there is strength in numbers.  No partner wants to be the one to inform an associate that he or she is being laid off.  It’s uncomfortable and an aspect of a partner’s job that is undesirable.  Having another partner present dilutes the responsibility associated with the layoff.  Second, partners want to present a united front.  It makes it symbolically a “firm” decision, when there are times the layoff is prompted or catalyzed by one primary partner.  (There are of course times when a mass layoff is engineered from the very top, but this is not always the case.)  Third, to the extent that a future lawsuit is filed by the associate against the firm, the partnership can have corroborating witnesses at trial to impugn the associate’s testimony of the conversation that takes place.

The conversation itself almost always takes place in a partner’s office.  This is designed–consciously or sub-consciously–to create an unequal playing field.  When the associate is called into the partner’s office, there is a clear sense of a power disparity.  In some cases, the conversation may take place in a more neutral zone such as a conference room.  But it never takes place in the associate’s office.

The substance of the conversation is based on the written record that has been prepared.  It’s reminiscent of the final court scene from A Man For All Seasons, where Thomas More eloquently (and with futility) argues with moral and legal persuasive force why he should not be convicted of high treason against King Henry VIII.  During this conversation, the partnership will set forth the “charges” against the associate, and ostensibly provide the associate an opportunity to respond to the charges.  It’s all a theatrical performance whose outcome has been preordained.

At the end of this week, we wrap up this three-part mini-series by discussing the “stealth” in stealth layoffs.

I have received numerous requests to write about the stealth layoff, a topic that is by its nature a secret.  The question is, if a stealth layoff is by definition disguised and “stealthy,” how does one go about writing about this topic?

I set out to interview associates who have left their firms to determine exactly the circumstances under which they left, and what the process entailed.  Due to the highly confidential nature of these interviews, the names of these individuals and their firms have to remain anonymous.

There appears to be common elements to any stealth layoff.  This week, we will delve into the mechanics of the three main parts of the stealth layoff:  (1) establishing the record; (2) informing the associate; and (3) negotiating for voluntary leave. Part 1 of this three-part post discusses the partnership’s approach and strategy in establishing the record.

The layoff begins with the partnership building a “record” against the associate — poor work product, bad attitude, mistakes, missed deadlines, inefficiencies, and/or inability to work with other members of the legal team.  Some of the criticism may be justified; others may not be.  As any lawyer knows, there are always at least two sides to any story.  There’s no exception when it comes to stealth layoffs.  At the end of the day, it doesn’t really matter whether the criticism is justified or not.  Once the partnership decides that an associate is targeted for a layoff, the firm perception of that associate is negative and he or she cannot do anything right.  On the flip side, a rising star can do no wrong.  Mistakes or carelessness can be forgiven or explained.  Blame is shifted to someone else.

Because there are always different sides to a story, the partnership needs to create a record to prove that the associate is in fact incompetent.  Its primary purpose is to serve as insurance against a potential future lawsuit by the associate for wrongful termination.  Usually, the record is established through the use of a file that contains the associate’s allegedly poor work product and the negative comments from as many partners as possible who have worked with the associate.  The key for the firm is to discount any positive performance and to emphasize the negative aspects.  The partnership also prefers to have as many partners get “on board” as possible to show that the associate was unable to work with a majority of partners as opposed to an isolated incident involving personality differences with one partner.

The second part of establishing the “record” involves developing a history of problems.  Thus, partners are encouraged to remember past problems–some even several years old–in order to show that the associate had been given numerous chances to succeed, had been informed of the performance issues, and had not done enough to rectify the purported problems.  The interesting thing about this is that apparently, this record is sometimes created retroactively.  In other words, it’s not a record that is created contemporaneously with the associate’s development at the firm, but only after a decision had been made to layoff that associate.

After the record has been firmly established (at a law firm these records tend to be as legally iron clad as possible), the partnership then informs the associate of the decision.  Part 2 of this mini-series will discuss the mechanics of the conversation between associate and partnership.

How would you like it if I told you that you only needed to go into work three days a week?  Almost all of you–given the chance–would take me up on that offer, right?

Now here’s the fine print:  I said, “go into work” as opposed to “not work.”  In other words, we’re not talking about only working three days a week, but instead working a full week but spending two of the five days at home or elsewhere.

The prior posts from the past two weeks have dealt with the concept of the remote office.  I’ve argued that Citrix and other software have made it possible for us to have increased flexibility in the workplace.  Attorneys fly around the country all the time for client meetings, depositions, and court hearings in other jurisdictions–and during this time, they manage to continue to log in to the firm server and work as though they were in the office.  All these road warriors need are a cell phone, a laptop, Citrix, and Wi-Fi.

So why is it that most of us are stuck in the office five days a week, from Monday to Friday?  Who came up with the idea that people have to commute to work five days a week out of every seven?  Does it still make sense in our technologically advanced society?

I had lunch recently with a friend who is a brilliant lawyer.  He’s a mid-level associate at a large law firm in the Bay Area, and he decided that there was absolutely no reason for him to physically be at work five days a week.  He felt that he could actually be more efficient at home, where he could focus on his job without the distractions of the office.  Plus, when he was at the office, he generally communicated with partners and other associates through calls and e-mail anyway, so what difference did it make for him to be physically present?  It was a waste of commute time, a waste of gas, and it meant having to eat out instead of being able to fix himself a nice healthy lunch in his own kitchen.

Being somewhat of an independent thinker, he decided to simply not show up to work once in a while.  It started as once every couple weeks, just on a trial basis.  No one seemed to notice, so he increased it to once a week.  No one complained, and so he started disappearing two days a week.

When partners needed to get a hold of him, his assistant would simply transfer the calls to his cell phone.  During the work days when he worked from home, he was completely responsive to calls and e-mail.  When he first started disappearing, the partners never even noticed.  Only his assistant knew where he really was.

Of course, eventually, the partnership caught on to what he was doing.  But, by that point, what could they say?  He was produced high-quality work product in an efficient manner, and there was no justification for keeping him in the office.  In fact, he could argue to the partners that eliminating his commute time actually increased his billable production, ultimately adding value to the firm’s bottom line.

As to days when he physically needed to be in the office for face to face meetings or when there was a project that would be easier to supervise from the office, on those days, he would show up.  The key is that he didn’t attempt to completely eliminate going to the office; he simply reduced the time he spent there for moments when his physical presence was actually needed.

So if you’d like to commute to the office only three days a week, why not try it?  Figure out opportunities when your physical presence is not needed, and stay home.  You’ll be surprised just how empowering this can be, and how wonderful it feels.  Just make sure you don’t end up turning on the TV and watching the NCAA tournament all day.  If you don’t have the discipline to actually work from home, this is not for you.

Last week, I wrote about how I loved Citrix for its ability to let me “get away” from the office once in a while.  Today, I provide the counterpoint based on what some other associates have told me.

For some, the flexibility and refreshing qualities of working from home are either not appreciated or simply outweighed by other considerations.  Apparently, some people need the more formal office environment to focus on work.  Sitting in a bathrobe at home doesn’t bring out their best legal skills.

Creatures of habit may find that changing their “normal” routine could feel jarring.  I know some employees who actually hate having 3-day weekends due to holidays such as Memorial Day, MLK Day, and Labor Day.  When asked about this, they tell me they “don’t know what to do” and it disrupts their schedule.  Go figure.

But the greatest opposition to the remote office apparently stems from resistance based purely on principle.  Some self-styled purists in the world believe that work is meant to be done at work, and home is a sacred place where the office should never impinge upon.  The expression “leaving work at work” was probably coined by one of these purists.

I certainly respect the principle behind this position, but the reality makes it difficult to practice.  We would all love to come home and not have to think about work.  The problem is that, as an associate at a law firm, there’s sometimes too much work to complete during “normal” business hours.  The other problem is that practicing law is often an “around the clock” job.  There will be circumstances that require the constant thinking of legal strategies, positions, arguments–and you can’t just artificially turn it off like a light switch.

So the question isn’t whether you should leave work at the office (we’d probably all like that), but instead whether–under those circumstances when you are forced to work after hours–you should continue your work at home or stay at the office until 2 a.m.?

Technology has altered the way in which law is being practiced at large law firms.  Blackberries allow for clients and their lawyers to be in constant communication via instant “push” e-mail.  Electronic legal research has almost completely supplanted law libraries.  And the ability to work from home or elsewhere has begun to change the way in which we perceive the “office.”

Personally, I love Citrix.  I love being able to work from home sometimes, out on my deck or the boat dock.  Even though I am still working, getting out of the office and changing my surroundings is, literally, a breath of fresh air.  It breaks the tedium and flow of the same old routine, day in and day out.  It gives me an opportunity to feel the warm sun on my skin, to sense a gentle wind blowing through my hair–to experience an actual day.  Sitting in a climate-controlled office doesn’t count.

Citrix has also come in handy during those days when I am literally too busy to commute into work.  When I’m facing a huge deadline at work–those days where it seems like every second matters–I save at least a good hour and half in the morning when I don’t have to shower, shave, put on work clothes, drive to the BART station, and commute into the city.  Instead, I literally roll out of bed in my PJs and log onto the firm’s server.  At my disposal is my work e-mail account, all my documents, and pretty much anything I need.  Since I tend to have my best ideas early in the morning, I’ve now applied my mind when it’s sharpest to the tasks at hand, instead of wasting that valuable window of opportunity trying to catch the train.

This leads me to my next point.  Working remotely can also free you from the distractions of being at the office.  I know, the whole point of the office is so that everyone is physically present in the same building.  But that’s also the problem.  When I’m at the office, people are constantly stopping by.  Paralegals and secretaries always have questions, a partner or workflow coordinator wants to know if I can take on more work, and other associates stop by to chat.  Don’t get me wrong; the social interaction is a good thing.  It’s just not an efficient use of time when I have a legal brief due, and I need to get it done pronto.  At those moments, hiding myself from the world so I can focus exclusively on the task at hand is the best and most effective way to get the job done and done well.  Citrix allows me to do that.

There’s also an emotional component to the remote office.  If you have a spouse, pet, or child who is at home during normal business hours, it’s nice to be able to spend some “extra” time with them.  Bosses are always afraid that when employees work from home, they aren’t actually working because of all those possible distractions.  The reality is surprising.  If work needs to get done, it will get done.  But somehow, being in the same room as your spouse, pet, or child–even if you’re working the entire time–makes all the difference in the world.  If you don’t know what I’m talking about, go home and try it.  You’ll soon understand.

Do you enjoy working from home?  Do technological advances such as the remote office help or hurt our lifestyles?  Feel free to let me know what you think.

By the way, in case you were wondering, I’m writing this post from home.