Neil Berdiev
If you find yourself heading for a layoff, voluntary or involuntary departure, you may discover lots of attorneys you already know are unable to help with the paperwork. Here’s why it can happen and what you can do.
(Please note that this article does not represent legal or other professional advice. It is merely a recollection of a few stressful lessons learned that you need to be aware of when leaving your employer.)
One day it was my time to leave a former employer, after I was informed that my position was being eliminated. For those of you who’ve been in similar situations, you know that in addition to feelings of uncertainty (among many other strong feelings), you are often handed a stack of legal documents to sift through. They may range from non-competes to confidentiality to non-solicitation to more obscure paperwork. The vice president of HR handed me my exit documents, suggested I discuss them with my attorney if I had specific questions, and told me my severance was going to depend on my acceptance of these agreements.
This is when you know that it is time to reach out to an extensive network of attorneys that you’ve developed over the years. I thought that this was going to be a slam-dunk. As commercial bankers we meet lots of lawyers who want to do business with us. But I quickly discovered going down the list of the attorneys I knew that they were not able and perhaps not willing to help me with reviewing my exit documents.
Conflict Of Interest
What came between me and many years of professional connections as well as some friendships is the ugly little term “conflict of interest.” If you have not yet guessed what this is, if your employer is currently doing or has done business with a particular law firm, reviewing and advising on documents (and potentially representing you in a dispute with the employer, if one were to arise) may constitute a conflict. I was also getting a strange feeling that the network did not quite want to spend the time to explore whether they could obtain a waiver from my employer and to represent me.
At the time, I felt let down, especially since my separation was extremely amicable, and I could not have wished for a better treatment when being laid off (especially compared to experiences of many of my peers at other organizations). So much for building professional ties, right? Although all my contacts provided several leads to alternative attorneys, these practitioners did not seem to be a match for the experience needed in this situation. After a considerable search, I was finally able to find a lawyer through that same network who had the experience needed and was willing to help, although these were stressful days.
Below are some of the key lessons from my situation, which were learned on my own and with the help of our corporate counsel Matt Moschella who is a partner at Sherin and Lodgen (they may not represent all that may be relevant for your situation).
Attorneys write separation agreements. You should consider having one with relevant experience review yours.
If you are engaged in a line of business that uses attorneys to close deals and to otherwise execute documents, there is a good chance that your network may not be able or willing to help you with reviewing your documentation.
Some companies are known to spread on purpose work among various attorneys, in anticipation of situations like these that when you need legal advice, no attorney with relevant experience may be available. Anecdotally, over the years, I’ve heard from some attorneys that Walmart, Disney and other large employers are known for this business strategy, but they do not have to be multinational firms to do this.
Find out if there is a deadline for documentation signing and whether you may be able to get an extension, if you are not able to find the right attorney right away.
Unless you are a personal client of a law firm already or represent a possibility of significant business for that law firm, there is a chance that it may not be enticed to go through the trouble of resolving the conflict of interest issue.
Consider working with attorney with experience in employment and HR issues, as opposed to a generalist or specialist in other areas.
Get from your attorney network two to three names of attorneys who are the right fit for the skills you need and who are not likely to have a conflict. You may end up with attorneys who do not work with your industry much or are out of state with license to practice in your state.
It may sound strange in the age of maximizing personal and corporate benefits, but handle the situation to make it fair for both you and your employer, especially if you are being treated well and with respect during a downsizing. If a separation is amicable, the way you handle yourself may lead to opportunities to do business together again in the future.
Neil Berdiev is a commercial banker and founder of DNB Advisory LLC, an outsourced commercial credit services and advisory firm working with commercial lenders and privately held companies. He may be reached at neil@dnbadvisory.com.
