As your solo or small firm grows, you will probably consider hiring an associate attorney to help with the work. And if some day there just isn’t as much business as you’d hoped there would be or the hire is not working out, there’s a chance you’ll need to terminate the employment. Here are some things to consider if you are thinking you need to fire an associate attorney.
In general, most employees in most states are “at-will,” meaning they can quit at any time and you can fire them at any time. However, there are some illegal reasons for termination, including discrimination, whistle-blowing, military duty, violation of the Family Medical Leave Act, or jury duty.
When You Should Fire an Associate Attorney
Hopefully, you’ll never need to fire an associate attorney you hired. But once you decide that it’s time to fire your associate, here are some keys to minimizing potential problems.
“The process of firing someone starts when you hire them,” Attorney Gordon Mammel of Randstad Professionals stated. “Have them sign the necessary agreements, non-disclosure, non-competes. Send an email at the onset of employment so they have a copy.”
Ideally, the termination won’t come as a surprise to the employee. “Be clear in setting expectations at the start of the employment relationship, and set up regular check-in meetings to ensure that your employee knows if they are meeting or not meeting expectations,” Human Resources Consultant Laura Norris said. “An employee is less likely to pursue legal action if they aren’t surprised and were given the opportunity to impact their outcomes.”
There is no single reason an associate attorney may need to be fired, but a common warning sign is that you told your associate to improve and they don’t improve or worse … they don’t even try. But there are also other reasons to let go of an associate besides poor work performance.
If you have an associate stealing clients for a new firm they want to start, it’s a given that they have to be let go (which is, after all, what they apparently want). Once you have determined the associate is trying to steal clients, the decision to fire them is an easy one.
Sometimes, the associate attorney you hired is simply not a good fit. You might spend so much time managing and worrying about them and their performance that your entire firm suffers.
An employee might undermine you. They might complain about you or even openly challenge you. Frequently, managers who have fired employees due to this have only one real regret about the process: they didn’t pull the trigger earlier.
If one of your clients feel they aren’t being taken care of by your associate attorney, they will soon be looking for a new law firm. If a client takes the time to complain to you, take it seriously. It might have been hard for them to get the nerve to talk to you about their dissatisfaction instead of just firing your firm and moving to new representation. The client will want to know what will change after their conversation with you.
Prepping for the Meeting
You should prepare several items before the meeting, including:
- Health insurance and COBRA information.
- The employee’s final paycheck (rules vary from state to state).
- The severance package you may offer.
- The termination letter.
Plan in advance whether you will let them pack up their things or have them packed. Most employers limit computer access immediately after the termination (or even during or prior to the meeting). Ask the employee to return company property like cell phones, keys, key cards, etc. Have a witness present for the termination meeting if possible. Many wrongful termination suits hinge on what is said in this final meeting and a witness can be critical.
The Day of Firing
Most experts agree you should try to fire someone earlier in the week. If you fire someone on their way out the door on Friday, they have all weekend without access to many employment-based resources. It’s better for the employee if they can call the unemployment office the next day or dive into their job search.
Don’t have someone else fire an associate on your behalf. Assuming it’s your small firm, it’s best if the news comes from you. The meeting should be done in person. Never fire someone over the phone, email, or text. Tell the employee at the beginning of the meeting of your decision to let them go. You should be honest, brief, and direct. After you tell them about the termination at the beginning of the meeting, the remainder of the time should be for answering logistical questions. Ideally, this meeting will be under fifteen minutes.
To Severance or Not to Severance
Severance packages might seem counterintuitive if you are firing someone; a severance package is essentially agreeing to pay someone who isn’t working for you anymore. But Norris recommends that you at least consider it.
Severance can help ease the process for the impacted employee. If you only give them two weeks, the employee might not sign. In large companies, they might give 60 days or more. It can cost several thousand dollars to hire a lawyer to fight a wrongful termination claim.
One employment attorney I spoke with mentioned that severance packages are almost “expected in the professional world. Doctors, dentists … there is almost always some sort of severance with a release of claims.” These releases can’t cover everything, however. Workers’ compensation claims and some discrimination claims may not be waived.
“Never stand in the way of unemployment,” Norris said firmly. “If you cut off their access to unemployment, you’re forcing the employee to consider litigation. Only if somebody stole from the company, or something egregious, is it worth contesting.”
An employment attorney mentioned the decision to contest the unemployment claims might depend on the size of the office. “In a small firm, not contesting unemployment could raise your unemployment insurance rates. But you can only contest the unemployment if the termination is performance-based.”
Not Losing Clients
One of the biggest concerns with firing a lawyer from your firm is whether they will try to take clients. It doesn’t happen as often as people think, but if the associate is arguing they should be able to keep clients, Mammel noted, “clients have relationships with individual lawyers, but also the law firm. When someone goes off on their own, there will be risks with them. Does the new person have the same level of malpractice insurance and administrative support that our needs demand? Is this person starting their own firm going to be able to give us the attention that we are used to?”
Firing is Hard for Both Parties
Firing anyone is difficult. It’s hard for both the person firing and the person being fired. In a small office, it can be even more difficult. Even though you’re the one firing the employee, it can feel like a failure on your part. You may have hired the person. Or you didn’t give the associate you hired enough guidance or supervision to succeed.
People who get fired have a wide variety of reactions. Once they realize they are being fired, many people simply want to get out of the office as quickly as possible. Others will react emotionally, which can range from sobbing to angry reactions.
But the effect on the person doing the firing is real as well. Plan on having some time to decompress immediately after the meeting, whether that means leaving the office to go to lunch or taking a walk. Do something to help yourself mentally reset.