Practice Management

About half of lateral partner moves involve a search firm, according to the 2023 Lateral Partner Satisfaction Survey. Engaging a recruiter isn’t just commonplace, it’s often critical, as search firms have access to networks (and marketplace buzz) that law firms do not. Recruiters are an investment, typically commanding placement fees in the healthy six figures; an AmLaw 50 lateral partner’s headhunting fee averages $598,400. But given that 64 percent of lateral partners will fail to bring their promised book of business, and that 48 percent of laterals will leave within five years, how can law firms maximize their recruiter ROI? After screening thousands of lateral partner candidates—a significant number represented by highly professional recruiters and recruiting firms—we have 10 questions you should be asking to help distinguish the best from the rest: What is the hiring rationale? Why are you bringing this specific candidate to our specific firm? Why are we a good fit for their book of business, industry expertise, practice specialty? How will they advance our goals? The right recruiter will have a working knowledge of your firm’s strengths, and even without a copy of your strategic plan, can articulate why this hire makes sense for both sides. How was this candidate sourced? It’s important to understand the basis of the initial contact: Is this truly a strategic candidate who’s looking seriously at firms like yours, or is this a friend-of-a-friend situation where the search firm is tossing out some breadcrumbs and hoping for a bite? What does the book of business look like? Firms must go beyond composite numbers; a “$5 million book” doesn’t provide enough context for a real assessment. Keep in mind that on average, lateral partner candidates claim to port about 57 percent of the clients they list on their lateral partner questionnaires; the actual portability rate is about 35 percent. If that $5 million book is all tied to one client, odds are against it all coming to your firm. Who filled out this Lateral Partner Questionnaire? When we are screening candidates, it is consistently surprising how many LPQs are actually completed by search firms, not the candidates themselves. Not only is this borderline unethical, it often results in inconsistencies between the LPQ and any kind of screening, making due diligence a longer and more cumbersome process. What are the candidate’s strengths and weaknesses? No candidate is perfect, and the right recruiter should be forthright and transparent. Savvy search firms will have some constructive feedback on even senior rainmaker candidates; if your recruiter presents laterals as too good to be true, they probably are. What questions do you have for us? Another red flag: the recruiter who only wants to talk and never wants to listen. Again, you don’t have to give the search firm your strategic plan, but the right recruiter will show genuine curiosity, not just Google research. They will want to know about the strategic fit, practice area and cross-selling potential—not just for this client, but for future connections, too. How do you define “data”? Some search firms are following the Big Data trend and purporting to offer quantitative screening or proprietary analytics. This should be viewed skeptically, and law firms should absolutely ask to see the math. Search firms are not in the business of gathering independent intelligence; far too often this “data” takes the form of surveys or candidate-provided information. How are you incentivized for long-term success? While every search firm is different, it’s common for recruiters to receive their fees shortly after the lateral partner joins. However, it can take a while to onboard the lawyer and even longer to realize there may be issues with client portability, cultural fit or bad behavior. Granting refunds within months isn’t long enough; law firms should ask for consideration periods of at least 18 to 24 months. Where else are you presenting this candidate? As we said, you want to work with search firms that know your business and bring you lateral partners that fit into your strategic plan and culture. If that is truly what they are doing, they will not be shopping candidates all over the market; what makes a great fit at Firm A can make little sense at Firm B. On a related and crucial note: What’s your timeline? Resist the fire-sale lateral, and run from any search firm that uses strong-arm tactics to pressure you into hiring a candidate quickly. Whether it’s an artificial deadline or buzz about the competition, hurried moves don’t allow you to conduct the necessary pre-hire due diligence that keeps out problematic partners. Ask for the timeframe you need for both due diligence and strategic planning, and be prepared to walk away if the recruiter will not honor it. Even with the very best search firms, we offer two caveats: Let your recruiters bring you candidates; use data to strategically grow identified needs. Recruiters play an important role connecting law firms with laterals who want to move; these transactions make the most of search firms’ networks and expertise. However, when it comes to filling a talent pipeline—and sourcing talent for an office, practice or industry team—it’s far more effective to apply a strategic, data-driven approach that takes into account the entire market, such as Decipher’s custom talent playbooks. Trust but verify. Your search firms should screen candidates before they introduce you, but this is no substitute for true due diligence. Comprehensive due diligence should incorporate objective intelligence as well as human intelligence, but above all, it should be conducted by an independent resource with no financial tie to the ultimate result. Decipher offers three levels of pre-hire due diligence that protect your firm’s revenue and reputation.

Performance reviews can often feel like a necessary evil in the workplace. Managers and employees dread them. They’ve become commonplace for a good reason: when they’re done correctly, they’re effective. A meaningful performance review sparks growth and enhances team dynamics. Often, it’s the singular opportunity for open dialogue, constructive feedback, and genuine recognition. These are the things that employees crave—so why do we hate them so much? Unfortunately, most organizations just go through the motions. But your organization doesn’t have to be that way. Crafting a thoughtful review process not only boosts morale, it also drives productivity. When done right, these discussions empower employees and align their goals with organizational objectives. Research shows that when employees feel they contribute, they are happier and better at their jobs. Ready to transform your approach? Let’s dive into how you can conduct truly meaningful performance reviews. Understanding the Importance of Performance Reviews Let’s pause for a moment—if everyone hates performance reviews, why do we do them? Performance reviews play a vital role in employee development and organizational success. In fact, they might be one of the biggest tools for development and success. How? They provide an opportunity to assess achievements, clarify expectations, and stop attrition. It gives managers a chance to align individual goals with the company objectives. Regular performance evaluations build open communication channels between managers and employees. This dialogue encourages growth and enhances job satisfaction, motivating team members to perform at their best. But in order to get these benefits, your reviews have to be meaningful. How to Conduct a Meaningful Performance Review Conducting a meaningful performance review begins with preparation. In fact, just doing this can transform your performance review process. How can you prepare? Gather relevant data, such as previous reviews and project outcomes, to provide context. If you’re keeping track throughout the year, this should be easy. If you aren’t, it’s a little more time-consuming—but you’ll keep track better next year. Schedule the reviews early enough so everyone can prepare. Don’t rush this! Ensure you have enough time so that discussions can be thorough. As a manager, you know which of your employees talks more. Create an open environment where employees feel comfortable sharing their thoughts. This starts before reviews! Build up trust between managers and team members. When in the session, encourage two-way communication by asking questions and listening actively. As you (and your team) grow, you’ll be able to refine this process. This just a bare-bones skeleton. The magic comes with adjusting the format so that it meets your needs. The ultimate goal? More productive conversations about growth and development. How to Create Growth from Performance Reviews If the ultimate outcome of performance review season is growth, how can you build a process that promotes it? Well, that’s difficult to answer without looking into the DNA of your organization. However, there are six pretty key ways to create growth: Implementing 360-degree feedback. Writing effective performance review comments. Being comprehensive and positive within your reviews. Getting specific with your feedback. Incorporating developmental support. Focusing on the future. Implementing 360-Degree Feedback Implementing 360-degree feedback transforms performance reviews into a comprehensive assessment of an employee’s contributions. What are 360-reviews? It’s when managers gather insights from multiple sources. This could include peers, managers, and even clients. It paints a well-rounded picture of strengths and areas for improvement. For managers with large teams or working different shifts, it gives insights that they might not have otherwise. In some instances, employees may request 360-reviews themselves or managers may request them. It’s good to have both happen to avoid things like bias. Writing Effective Performance Review Comments Written comments help employees understand what their next steps are. Of course, verbally saying them helps too, but giving employees something they can reference is even better.  Writing effective performance review comments isn’t easy. It requires clarity and specificity. A few brief tips to get it right: Use examples to illustrate your points. Focus on behaviors rather than personality traits. Aim for a balance between positive feedback and constructive criticism. Ensure that comments are actionable and supportive in nature. Being Comprehensive and Positive A meaningful performance review should encompass all aspects of an employee’s work. This means the good and the bad. While it can be challenging to talk about the bad for some managers, that’s where the magic is. This balanced approach ensures individuals feel valued while still recognizing opportunities for growth. Maintaining a positive tone is crucial. Focus on what employees do well before discussing challenges. This fosters a supportive environment, encouraging them to embrace feedback and strive for excellence. You don’t want your employee walking away feeling like they got beat up, but you do want to be constructive. It is important to note that high achievers want feedback too! They want to know what they can improve upon over the next year to get to that next level. Sharing Specific Feedback and Examples Specific feedback provides clarity and direction. Instead of vague comments, highlight particular moments where the employee excelled or faced challenges. Within Mitratech’s performance management system, it’s easy to make notes so that your managers have a record of these moments. Then, when it comes time to do annual reviews, they can pull up the information they have. This eliminates recency bias, which some employees use to their advantage. This approach helps them understand exactly what behaviors to continue or adjust. Use concrete examples to illustrate your points. For instance, rather than saying “you did well,” mention a successful project they led or how their teamwork improved departmental efficiency. This level of detail reinforces positive actions while still promoting growth. Incorporating Developmental Suggestions Incorporating developmental suggestions in performance reviews is essential for growth. It allows employees to understand how they can improve and further their careers. Offering specific, actionable advice empowers individuals to take charge of their professional development. When suggesting areas for improvement, align them with the employee’s goals. Provide resources or training opportunities that can help bridge any skill gaps. Mitratech’s performance management system ties directly into our learning management system. When a performance review session is over, managers can enroll their employees in training courses. That way, they are able to see the results and track progress from the day of the review. It’s an easy way to ensure there’s action after the review! Focusing on the Future When conducting a meaningful performance review, shift the focus toward future growth. Encourage employees to set ambitious yet achievable goals. This approach fosters motivation and creates a roadmap for success. Discussing potential career paths can inspire team members to envision their professional journey. Help them identify skills they want to develop or projects they’d like to tackle. By emphasizing forward-thinking dialogue, you empower employees and enhance overall engagement in the workplace. Best Practices for Performance Review Writing When crafting a meaningful performance review, clarity is key. Use straightforward language that conveys your message effectively. Avoid jargon and ensure the feedback is easy to understand. This helps employees grasp their strengths and areas for improvement. Balance positive comments with constructive criticism. Highlight achievements while addressing challenges without being overly harsh. Incorporating specific examples provides context, making feedback more tangible and actionable. Remember, your words shape their future potential within the organization. If you’re writing your review comments while being mad at the employee, struggling with your own work, or just in a bad mood, consider coming back to them with a fresh perspective. Using Action Verbs and Maintaining Balance Using action verbs in performance reviews enhances the clarity and impact of your feedback. Words like “achieved,” “developed,” and “improved” highlight specific contributions, showcasing strengths. This approach offers a precise picture of their performance. Maintaining balance is equally important. Strive to create a dialogue that encourages growth while recognizing successes. Avoiding Common Mistakes in Performance Reviews Many managers stumble by focusing too heavily on negative aspects. This can demoralize employees and hinder their growth. Instead, aim for a balanced approach that highlights strengths along with areas for improvement. Another common pitfall is vague feedback. Generic comments lack impact and clarity, making it difficult for employees to understand how they can improve. Use specific examples to illustrate your points, ensuring your message resonates clearly and constructively. Finally, only doing reviews once a year is a huge mistake. Continuous reviews, particularly in the first year of an employee’s tenure, help to keep the train on the tracks. You want to do the same thing with every promotion. Involving Employees in the Process Involving employees in the performance review process is vital. When employees participate, they feel valued and heard. This engagement fosters ownership of their development and encourages transparency. Encourage open discussions about goals, challenges, and achievements. Allowing employees to share their thoughts leads to more meaningful insights. They can provide context that managers might miss. Create an environment where feedback flows both ways. This collaboration not only strengthens relationships but also enhances the quality of reviews.

As law firms move further into the digital age, CRM (Client Relationship Management) systems have emerged as critical tools in the marketing and business development (BD) toolkit. The CLIENTSFirst 2024 CRM Success Survey (the “Survey”) highlighted a clear takeaway: while most law firms have a CRM system in place, many struggle to fully realize its potential. In a time where technology solutions are transforming industries, law firms must rethink how they use CRM to connect with clients, streamline operations, and ultimately grow. The legal sector, known for its measured pace in adopting change, now finds itself at a crossroads. Law firms are facing mounting pressure to adapt, not only from peer firms but also from clients and prospects who expect faster, more personalized service experiences. While law firms have traditionally used CRM systems for tasks like managing contact lists and organizing event invitations, the real value of CRM lies in its ability to enhance client relationships and generate new revenue streams. However, as revealed in the Survey, satisfaction rates with CRM are alarmingly low. Many firms rated their CRM effectiveness only a 5 out of 10, indicating persistent frustrations with data quality, user adoption, and ROI measurement. With the right approach, CRM can move from being just a contact management tool to a powerful platform that enhances client service, boosts collaboration, and enables firm-wide strategic insights. Here are the top seven steps law firms should take in 2025 to elevate their CRM success and transform how they engage with clients. 1. Commit to Data Quality The foundation of any CRM system is the data it contains. Yet, our survey found that data quality remains a top concern. Poor data—whether incomplete, outdated, or duplicative—leads to inefficiencies, missed opportunities, and user frustration. Law firms should consider implementing dedicated data quality measures, such as regular audits, cleaning protocols, and data stewardship. Outsourcing data management can be a cost-effective way to ensure high-quality data without overextending internal resources. 2. Emphasize User Adoption Through Training and Support One of the most significant barriers to CRM success is inconsistent user adoption, especially among attorneys. A CRM system is only valuable if people use it consistently. Firms can address this challenge by offering targeted, ongoing training that aligns with user roles and needs. Consider multiple training formats, such as workshops, quick-reference guides, and individual coaching sessions, to ensure users feel confident and empowered. 3. Shift the Focus from Data Entry to Data Quality Redefining how CRM success is measured can drive more meaningful use of the system. Traditionally, CRM success was often measured by the quantity of data entered. However, our survey suggests that focusing on the information’s utility—how well it supports client service and relationship-building—is more effective. By framing CRM as a tool that adds value rather than an administrative burden, firms can encourage adoption and create a more impactful system. 4. Leverage CRM for Strategic Business Development CRM can be a powerful business development tool, yet many firms still underuse it in this capacity. Advanced CRM features, such as client segmentation, activity tracking, and pipeline management, can help identify growth opportunities and streamline outreach. Firms can leverage these tools to reinforce existing relationships, pursue cross-selling opportunities, and track the ROI of BD efforts. In 2025, firms should strive to use CRM to capture the “big picture” of client interactions. 5. Integrate CRM With Other Key Systems Integration is essential for maximizing CRM’s value. When CRM is linked with systems like timekeeping, billing, and marketing automation, it creates a comprehensive view of client interactions and needs. This integration can streamline workflows and provide deeper insights into client engagement and business outcomes. For example, connecting CRM with billing data allows firms to tie events and sponsorships to new revenue and justify marketing investments more effectively. 6. Ensure Leadership Commitment and Vision Firm-wide CRM adoption requires more than just a great tool; it needs commitment from leadership. Firm leaders set the tone for how technology is used and embraced. When leadership champions CRM as a strategic priority, it fosters a culture that values data-driven insights and continuous improvement. Leaders can also help by communicating CRM’s benefits clearly and demonstrating its impact on client relationships and firm growth. 7. Adapt CRM to Support Firm-Wide Collaboration A well-implemented CRM system can facilitate collaboration across practice areas and offices. By organizing client teams within CRM, law firms can coordinate client service efforts and build a more cohesive client experience. Collaboration tools within CRM can help prevent uncoordinated outreach by centralizing client information, thereby enabling attorneys to work together more effectively. This cross-functional approach not only benefits clients but also uncovers additional service opportunities, such as cross-selling. By focusing on these seven strategies, law firms can transform their CRM systems from a tool of convenience to a cornerstone of client engagement and business development. With intentional, data-driven practices, CRM can become a pivotal resource that aligns with the needs of clients, attorneys, and firm leaders alike, ultimately positioning the firm for success in a competitive legal landscape. 

Law firms looking to expand into new markets must determine the best strategy. Some start from scratch, open a satellite office and attempt to grow it. Others seek to buy existing law firms and put them under their umbrella. The potential pros and cons of each strategy are below. Does Buying Existing Law Firms Make Sense? One of the most common ways some law firms expand into new markets is to buy an existing law firm. In many respects, most law firms consider purchasing an existing law firm the go-to way to grow. Many assume they can buy the firm and hit the ground running. One pro of this approach is that the existing law firm probably already has clients. When the law firm has clients already, it may feel that it can begin making a profit on the new venture relatively quickly, as opposed to starting a new office with no clients. Another pro is that the law firm may already have a brick-and-mortar office, employees, and the equipment to run it. Thus, the law firm may not have to invest much time and money in locating an office, getting the equipment and supplies, and interviewing staff. Lastly, many law firms assume their lawyers have built positive goodwill in the community. With this goodwill, many theorize that repeat clientele and referral-based businesses will readily come to the firm. What Are the Cons of Buying an Existing Law Firm? While buying an existing law firm may have some pros, there are also cons that law firms must consider. One is the price to buy the existing law firm. If an existing law firm is looking to buy at a reasonable or below-market price, it may be attractive to purchase the existing office. But with many existing law firms, they may be looking for a high or top dollar price to sell. For many law firms, buying out an existing law firm can be substantially more expensive than simply opening a brand-new office. Another con is that many law firm employees conduct themselves similarly. When another law firm buys them out, it might be unrealistic to expect the employees to instantly integrate into that purchasing firm’s way of doing things. For this reason, starting anew with employees who are trained in the purchasing firm’s processes can be more manageable. Third, while an existing law firm might have an existing brick-and-mortar office and equipment, most law firms can just as easily purchase or rent the same space or equipment at a similar price. By not purchasing an existing law firm, the law firm is also not signing onto another law firm’s debt, leases, or contracts. Lastly, while a prior law firm may have some reputation within the community, there is little telling whether that reputation is good or bad or worth purchasing. For many law firms, it might make sense to open a new expansion based on their enterprise goodwill. While some law firms may want to consider buying an existing law firm, many ought to open a brand new office, rent space, hire new employees, and open the expansion without purchasing an existing one. To open a new office, most law firms can start with single-attorney executive space, market appropriately, and get larger space once there are enough clients for that to make sense.

The average turnover for AmLaw 200 firms is 26.3 percent, according to analysis by Decipher Investigative Intelligence—so simply put, for every four lawyers at your firm, one will swap out every year. “Turnover” can be a loaded term, and one that is frequently misunderstood. Let’s start with the math: To determine the state of turnover in the legal profession, Decipher examined every firm in the AmLaw 200 to chart lawyer hires and departures over the past four years. This total accounts for a firm’s total “volatility”—the sum of people entering and exiting. We then divide the volatility by the firm’s total headcount; this resulting turnover rate measures the extent of change happening in a given year. This is the best way to think about turnover: a measure of the change happening to a firm, its roster and its culture. Just like change itself, turnover is not inherently “good” or “bad,” as two firms with dramatically different circumstances can have the same score. Consider two firms, both with 1,000 lawyers: Firm A is widely known for having a collaborative culture; in a given year, no one leaves, but it acquires a team of 300 lawyers, all with portable business and positive attitudes. Firm B loses its entire corporate practice—300 lawyers strong—in a dramatic exit that generated dozens of headlines and lost far more clients. Both have the same turnover rate: 30 percent. So, to assess your own turnover, you can start with the quantitative, but it’s imperative that you dive into the qualitative. While the specifics will vary for every firm, here is a helpful approach to better understand (and act upon) turnover at your firm. Start with a straightforward sort. Compile lists of all lawyers who joined and left your firm within a given year. From there, it’s helpful to further segment: Voluntary: Lawyers who joined or left of their own accord. Involuntary: Lawyers whose decision was guided by other forces; in addition to terminations and layoffs, this can include mergers or acquisitions, as 99 percent of the individuals acquired were not directly involved in the negotiation. 

It seems as though every day, there is a story in the legal news about a well-known law firm facing a disqualification motion. While disqualification motions are being filed more frequently, that is only half the story. [1] Such motions are often filed under seal, either by counsel seeking to avoid publicity or clients who do not want to air their dirty laundry (such as employment discrimination claims, white-collar criminal matters, etc.) in a public forum. Additionally, law firms may quietly withdraw when initially faced with a well-grounded disqualification motion. What Are the Risks of Disqualification Motions? When a lateral partner moves to a competitor, there is a risk that the partner’s former clients, who may become averse to the new firm, may file disqualification motions. However, the risk may not be realized unless the new client engages in litigation with the lateral partner’s prior client, possibly months or years later. Disqualification motions tend to be more prevalent in intellectual property litigation, particularly in the bioscience and chip technology sectors, because there are relatively few practitioners in those highly technical areas. Given the frequency of corporate—and especially intellectual property—litigation, disqualification motions are often venue in Delaware courts. The state has a well-developed law on disqualification and tends to be somewhat hostile to such motions. Delaware is generally less concerned about whether a conflict of interest constitutes an ethics violation, which can be raised in a bar complaint. Rather, the focus is on whether the conflict undermines the legitimacy of the process and causes actual harm to the client. The risk of disqualification motions can be considerable for clients engaged in high-stakes litigation. This includes losing their counsel of choice, who are familiar with the case, and having to retain successor attorneys to get up to speed in a complex matter. Disqualification can likewise lead to a claim for legal malpractice or breach of fiduciary duty, as illustrated in the April 2022 decision of RevoLaze LLC v. Dentons in the Eighth Appellate District of the Ohio Court of Appeals. [2] In the Dentons case, the law firm’s primary sin was allegedly not telling the client about the risk of disqualification early in the attorney-client relationship. From a risk management perspective, even when a law firm concludes that a conflict does not exist, it should consider disclosing any issue to the client, which could potentially trigger a disqualification motion. It should also explain that while the firm does not believe a conflict exists, the firm wants the client to be aware of the issue and offer to discuss any questions or concerns the client may have. That step prevents the client from later claiming that had it known of a conflict, it would have made a different decision. Disqualification motions can have profound financial implications for law firms that earn large fees in complex and protracted litigation, particularly in the intellectual property field. Thus, law firms seeking to preserve attorney-client relationships in high-profile cases may pay outside counsel to oppose disqualification motions. Alternatively, in close cases of disqualification, clients may be willing to pay the attorney’s fees to retain access to their counsel of choice. Risk Management Considerations for Law Firms To reduce the risk of disqualification motions, some law firms proactively include advance conflict waivers in their engagement letters. Such waivers are more likely to be effective when working with a sophisticated client. [3] Two recent cases— IBM Corp. v. Micro Focus (US) Inc., decided in May 2023 by the U.S. District Court for the Southern District of New York, and SuperCooler Technologies Inc. v. The Coca-Cola Co., decided in July 2023 by the U.S. District Court for the Middle District of Florida [4] —suggest that such prior consent, obtained via a well-drafted advance conflict waiver, can be effective in opposing disqualification. These two cases identify elements of an effective prospective conflict waiver: A description of the types of conflicts that might foreseeably arise in the future; and The terms that would allow the law firm to undertake adverse representation that is not substantially related to a prior representation of the client, including taking steps to protect the client’s confidential information. Another risk management best practice is to identify and analyze potential conflicts of interest at the onset of the attorney-client relationship. This is often a labor-intensive process but a valuable risk mitigation measure. It involves reviewing attorney time records and interviewing lawyers to determine the scope of the prior representation and what confidential information the attorneys and law firm may possess. If a law firm believes that a former client could raise a conflict, it is advisable to inform the new client as soon as possible and obtain that client’s informed consent going forward. Careful vetting of lateral attorneys is likewise imperative to reduce the possibility of facing a disqualification motion. Law firms often want to move quickly in onboarding a new partner. However, it is crucial to complete a thorough conflicts check. Although not common, some law firms go back as far as three to five years. Law firms should likewise consider including provisions in their engagement letters containing: A disclaimer of future duties after termination of the attorney-client relationship, and A sunset provision stating that if the law firm has not performed any legal work for the client in 12 months, it will be treated as a former client for conflict purposes. Given that concurrent and former conflicts of interest are imputed to entire law firms, it is also prudent to have robust screening protocols to ensure that lawyers with potential conflicts cannot access confidential client information on a law firm’s server. Disqualification may be avoided where a law firm can demonstrate that it promptly and carefully screened allegedly conflicted counsel. However, states take different approaches to lateral attorney conflicts, so law firms must be familiar with the imputation rule in the particular jurisdiction in which the lateral practices. Illinois, where I practice, is rare in that law firms can address a lateral conflict via an ethical wall. Some states require a waiver, and others will permit an ethical wall if the lateral has minimal involvement, although each state has its own test for what level of involvement is permitted. Once a disqualification motion has been filed, it is recommended that a law firm promptly consult with its client, evaluate the chances of prevailing, and obtain its client’s informed consent to oppose the motion. If the conflict is serious, it is often best to withdraw. If a decision is made to fight the disqualification, usually affidavits must be submitted to prove the attorney’s limited involvement in a prior matter or lack of access to confidential information. Key Takeaways Disqualification motions appear to be proliferating in both public and private forums, including arbitration proceedings. Law firms need to be aware of the types of conflicts that most often lead to disqualification and the types of attorneys who may be affected. The exposure to such motions can be reduced by risk management, including advance conflict waivers and other provisions in engagement letters, careful vetting of lateral attorneys, and promptly implementing screening protocols. Even if a disqualification order is entered, it does not necessarily mean that civil liability or attorney discipline will follow—particularly if the conflict was technical and the client was not harmed. [1] Many of the ideas in this article are from a panel that the author moderated in March of 2024 at Hinshaw & Culbertson LLP’s 23rd annual Legal Malpractice and Risk Management Conference on “The Recent Explosion in Disqualification Motions” with panelists John Villa, a prominent legal malpractice litigator from Williams & Connolly, and Laura Giokas, the general counsel at BCLP. [2] RevoLaze LLC v. Dentons US LLP, 2022-Ohio-1392, 191 N.E.3d 475 (Ct. App.). [3] ABA Model Rule 1.9, Comment [22]. [4] IBM Corporation v. Micro Focus (US), Inc., 2023 U.S. Dist. LEXIS 100246 (S.D.N.Y. May 30, 2023); SuperCooler Technologies Inc. v. The Coca-Cola Co. et al., 2023 U.S. Dist. LEXIS 145316 (M.D. Fla. July 17, 2023).

Regularly, we read from news articles that an entity recently started its own business and entered into a business transaction or agreement with another entity. In response, we sometimes assume such an agreement or transaction was conducted at “arm’s length,” meaning the two parties to the agreement or transaction are independent and generally do not share a close relationship with each other, and often are presumed to possess equal bargaining power. In addition, one party to the agreement or transaction would not have any heightened duty to correct mistakes and exercise extra care in connection with the inexperienced counterparty. However, in practice, not every transaction is conducted at arm’s length and the nature of a business relationship between two parties can vary depending on the relevant factual circumstances. Indeed, special relationships exist that do not arise out of an ordinary arm’s length business transaction. One of them is a fiduciary relationship between lawyer and client. As Virginia courts have correctly put it, “[a] fiduciary relationship exists in all cases when special confidence has been reposed in one who in equity and good conscience is bound to act in good faith and with due regard for the interests of the one reposing the confidence.” In other words, a fiduciary in the relationship would “hold a position of trust and confidence with respect to another’s financial or personal benefit,” giving rise to specific duties of good faith and responsibility. The lawyer-client relationship is such a fiduciary relationship. As such, a lawyer must “deal honestly with the client, and not employ advantages arising from the lawyer-client relationship in a manner adverse to the client.” Rest §16(3). While ethical rules governing lawyers vary by state, all fifty states and the District of Columbia have adopted legal ethics rules based at least in part on the Model Rules of Professional Conduct by the American Bar Association (“MR”). Section 1.8(a) of the MR provides the following: (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. Simply put, lawyers may not drive hard bargains in dealings with clients unless the terms of the dealings are fair, reasonable, and fully disclosed, and the clients were properly advised of, and subsequently provided written, informed consent, to the terms. The applicability of the aforesaid fiduciary principle and ethical rules is not just limited to matters concerning the lawyers’ representation but rather extends to all dealings between the lawyers and their clients, including the lawyers’ business transactions with clients, and their acquisitions of ownership, security, or other financial interests adverse to the clients. While the scope of the fiduciary principle and ethical rules is quite broad, it does have limits. The ethical rules under MR 1.8(a) generally do not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others. For example, if a lawyer of the firm that happens to represent McDonald’s in a commercial litigation matter stops at a McDonald’s drive-thru lane and purchases some chicken nuggets, such purchase will likely be deemed one of the previously mentioned standard commercial transactions, and the ethical duty under MR 1.8 (a) would not be imposed on the lawyer for such transaction. This is because the chicken nuggets would cost the same at McDonald’s for the lawyer as it does for any person, and the lawyer would not have an unfair advantage over the client in the purchase of the chicken nuggets. Outside the area of standard commercial transactions, the fiduciary principle and ethical rules strictly govern the lawyer’s conduct. Given that a client should not be in a position to hire a third lawyer to determine whether his/her current lawyer’s conduct is ethical or consistent with the fiduciary principle in the first place, the client would need a lawyer who can properly assume the stance of objectivity and impartiality whenever he/she advises his/her client and ensure that their dealings with the client are fair and reasonable, and in the client’s best interest.

Whether you’re confident in your social media skills or still think it’s something “the kids use,” social media can give your networking efforts a significant boost. Social media is just one tactic in your toolbelt, and how you use it depends on your goals. Let’s explore eight ways social media can enhance your professional networking and development. If any of these align with your goals, it’s time to make social media a key component of your strategy. 1. Professional Networking Social media platforms, especially LinkedIn, offer incredible opportunities for professional networking. Lawyers are particularly comfortable with LinkedIn, which allows you to connect with peers, join professional groups, and engage in discussions. By following thought leaders, industry experts, and professional organizations, you can stay updated on legal trends, developments, and best practices. Tip: Follow relevant hashtags that resonate with your practice areas or client interests, and engage with content in those spaces. 2. Client Outreach & Education Social media is a great way to raise awareness about your services. Posting educational content ensures that your clients see you as a go-to resource. However, it’s crucial to know where your audience is. While LinkedIn is excellent for engaging with other lawyers, your clients might be hanging out elsewhere. Find the platforms where your clients are most active and meet them there. 3. Storytelling for Deeper Connections Storytelling is one of the most powerful tools on social media. Sharing success stories, client testimonials, or your personal journey can foster deeper connections with your audience. Whether it’s highlighting the impact of your legal work or demonstrating your expertise, stories make your posts more engaging and humanize your work. Interested in learning more about storytelling in legal? I’d be happy to chat further on how to effectively use this tool. 4. Advocacy & Promoting Causes Social media can be an effective platform for promoting causes, raising awareness for social justice issues, and advocating for legal reforms. By sharing success stories and engaging with community-based initiatives, you can build support for important legal work. 5. Building Community Relationships Social media helps you build stronger relationships within your community. You can answer general questions, provide real-time updates, and promote workshops or community events. It’s also a great platform to promote legal clinics and reach a wider audience. Remember: Always be mindful of the platforms your community members use most frequently. 6. Professional Development LinkedIn provides excellent access to webinars, online courses, and resources shared by other attorneys. By staying engaged with these opportunities, you can continue developing your professional skills and expanding your knowledge. 7. Building Your Reputation By consistently sharing valuable content and engaging with other professionals online, you can establish yourself as a knowledgeable and trustworthy legal professional. Social media also offers an opportunity to connect with potential collaborators, including legal professionals, nonprofits, and community organizations. 8. Managing Your Social Media Presence Maintaining professionalism on social media is crucial. Always uphold confidentiality and legal standards when engaging online. To build engagement and trust, be consistent with your posting, respond to interactions, and use a mix of multimedia to make your content more engaging. Maximizing Your Strategy: Connecting with Community Partners Even if your focus is on in-person engagement, social media offers valuable insights. Here’s how to leverage it: Follow them on social media: Learn more about your community partners by following them on platforms like LinkedIn to stay updated on their latest news and events. Google Alerts: Set up alerts for mentions of your key contacts in the news, helping you stay informed about their activities. Leverage mutual connections: LinkedIn makes it easy to see if you have mutual connections within organizations you’re trying to engage. Utilize these relationships to build stronger ties. Networking at Events: Enhancing Your Efforts If you’re attending a networking event, social media can be a powerful tool before and after: Connect with attendees: If you have access to an attendee list, reach out via LinkedIn with a personalized note explaining why you’re connecting. If not, follow up with people you meet after the event. Build thought leadership: Consider developing your own thought leadership content based on the interests of your target companies. Engage with their posts by commenting, sharing insights, and starting conversations. Developing Your Own Platform While platforms like LinkedIn are great for sharing content, I always advise creating your own platform—a place where you own your content. This could be a blog or a personal website. Why? Social media platforms can change or disappear, taking your content with them. Having your own space ensures you maintain control over your thought leadership. Final tip: Use relevant hashtags and engage with the discussions happening in the comments and replies. Sharing posts of interest to key contacts helps keep you on their radar. Engage Fully with Your Social Media Presence When using LinkedIn, identify a few groups that align with your interests. Engage by asking questions, posting comments, and sharing relevant content. This active participation will not only expand your network but also generate new content ideas and opportunities for collaboration. By incorporating these strategies, social media can transform your networking efforts, making it easier to connect with key contacts, develop professional relationships, and build your reputation as a thought leader in the legal community.

Management is about proper execution. More specifically, management is about executing the visions of your company’s leadership. Managers work in the present while leaders work in the future. Managers of people need to focus on how to get the people they manage to execute. Like many roles, there are any number of ways to manage people. Some people micromanage their teams because they have the need to control what their subordinates or employees do, or they don’t trust their team members to execute on their own. There can be good reasons, or at least what feel like good reasons, to do so. For instance, many managers argue that the product is going out under the manager’s name or the name of the company and it’s up to them to make sure it’s as good as can be. Those types of managers have a blind spot and don’t realize that having control of the product or goal is different from micromanaging the process to reach that product or goal. I think a better way to manage is to guide your team while giving them the freedom and flexibility to work towards the end goal. A manager may think he or she has the best way to manufacture the widget or is a better writer than whoever is drafting something that will go out under their name. If you train your people well and then let them control the process, amazing things can happen. George S. Patton once said, “If you tell people where to go, but not how to get there, you’ll be amazed at the results.” This is how products or processes are improved because innovation happens when people have a starting point and an ending point, as well as the opportunity to think outside of the box. It also provides great teaching moments for managers and their team. In my world this means letting a younger attorney on my team lead a case or write the first draft of a pleading or document. In doing so, it doesn’t mean I have no say on what the plan or final work product will be, but I trust that once I provide the big picture, what we’re dealing with, and where we need to go that my team members can choose the path to get there. I regularly am intrigued and amazed at the ideas people come up with and use that I wouldn’t have thought of that result in work that reflects well on me and the entire team. Giving team members ownership in the process is a positive for everyone. I challenge you to think about all this the next time you want to tell someone you manage exactly how to do what you’re asking them to do. Try telling them what you need and let them choose the path. You likely will get the same result as if you micromanaged them and probably will be surprised by how they got there. Either way you get what you need, but one path leaves the door open for innovation and positive feelings for your team members who know you trust them to do their job.