Being ushered into a new year, at least for this practitioner, has been a whirlwind. Needless to say, my abilities to write a post have been severely compromised and I do apologize. Not feeling very much in command of my time, this week’s post is about trying to be in command. We lawyers are used to being in command. We are in command of our craft. We are in command of the material in front of us. We are in command of an audience when we seek to address a jury. We need to be in order to effectively steward clients toward their most successful outcomes. However, for a lot of us private practitioners, that comfort with being in command may not translate to the inner workings of our businesses. But we always need to be in command of our businesses and a part of that means being in command of those who work for us. You have to be the boss.

             When you are in charge, there are times when you have to make difficult decisions that are, at the end of the day, in the best interests of your business and oftentimes your professional well-being. One of those difficult decisions may be the decision to either retain or let go of employees. It is never a pleasant or satisfying feeling when you have to decide to let an employee go. Such decisions should not be made lightly. But I have come to learn that such decisions do need to be made swiftly. The lawyer’s practice (if it is to be a successful one) requires intuitive, eager, and proactive support personnel who have some investment in the business. You cannot run a small, local law office with support personnel who could care less about the integrity and reputation of the practice. Law is sometimes not intuitive. So, it is vital to have support staff who are willing to learn those idiosyncrasies and retain them so that institutional knowledge is maintained, and the lawyer is not wasting their valuable time continuing to repeat that lesson. So, when those attributes cannot translate to one’s legal staff, changes need to be made. No one said our job or profession was easy. Letting employees go is not unique to the legal practice. Clearly, it pans out across every industry that takes on employees to further their goals. But how can letting employees go in a legal practice present some specific issues considering the intricacies of our practice?

             Our business requires, both ethically and practically, the requirement of confidentiality. The Bar rules do cover our employees regarding the duty of confidentiality and the privilege. So, if a client tells my assistant something, it is as if they are telling me and only me. However, when you let a person go, there is a real concern that due to the separation that former employee may not feel the need to adhere to that duty anymore. The Professional Rule of Conduct that applies is Rule 5.3. This rule permits us as attorneys to employ support personnel to help us and be covered by our confidentiality and privilege rules provided that we as attorneys are providing adequate supervision to that support person. But what happens to that confidentiality when that non-lawyer employee leaves the firm? There is always the concern that a disgruntled employee may vindictively spill what they learned about the clients you serviced. Of course, this is reprehensible. Pursuant to the rule, however, we are not ethically on the hook for such a disclosure unless it was done at your direction; which it was not. But, no one wants this to happen.

             So, letting a non-lawyer go, can carry some valid concerns. However, that fear shouldn’t keep us from letting go of an employee who is just not working for your firm. Because in the long run, keeping that employee may be more deleterious to your business than letting them go. This is an HBIC decision that we cannot and should not delegate to anyone else.  If this is something that you as a legal practitioner, who is also a business owner, are currently facing, it is first helpful to do a little research and due diligence about your duties pursuant to your state’s employment law. North Carolina is an at-will work state. Do your due diligence to make sure you understand what that truly means. Call on friends who practice employment law. Get their advice on how to best proceed with letting an employee go. One of the best pieces of advice that I got from a dear friend was to be brief. Almost painfully brief in the firing process. The law doesn’t necessarily require a long drawn-out meeting to accomplish firing an employee. The idea of an “exit” interview is something for employees who choose to leave the position as opposed to those employees who are involuntarily terminated. Some may feel that an employer should take that time to constructively learn from that terminated employee. Okay, this is kind of bullshit in my opinion. When you fire someone, it is usually not for a “good” or “positive” reason. So considering that it is very important that the firing session be full of respect and dispassionate empathy.

                 That leads me to my next pointer. When you let an employee go, there is no need to rehash all those instances and reasons that lead to the termination. The assumption is that if you have gotten to that point with an employee, you have already communicated to that employee on more than one occasion what concerns you had about them and their performance. So, there is no need to beat a dead horse if you have communicated the issues in advance. This session is not about you as the employer. It is about the soon-to-be former employee and communicating to them at the end of their time with you as an employer and preparing them for what they need to know upon their departure.

            There are a lot of perks about being in command and being your own boss. However, there are also plenty of responsibilities that go along with it; some pleasant, some not so much. But, ours is a profession of hard tasks that don’t stop at the courthouse steps.

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