HALLOWEEN EDITION: CUES TO CALL A LAWYER

Posted on October 31, 2022 in Consulting

Calling your lawyer should not be a scary event. Reaching out to your lawyer before the bad stuff occurs is like knowing someone is around the corner ready to jump out and say, “Boo”.  You know it’s going to happen, might be a little startled, but you will be prepared.  In the world of litigation, calling your lawyer when things get concerning helps avoid the courthouse.

Today I offer three tips for when you should call your lawyer before a tough situation turns into litigation.

Hiring someone with a book of business

Companies recognize the need for legal advice when they consider hiring someone with a non-competition or non-solicit agreement. Simply a no-brainer. I suggest employers take a broader approach: call your attorney when you consider hiring someone who is expected or likely to bring a book of clients from his prior employer. You can be certain that the former employer will be looking for every possible way to protect what it identifies as its clients irrespective of whether the departing employee has signed a non-compete.  The prospective new employer needs the assistance of legal counsel to position itself best to hopefully avoid litigation and certainly be ready in the event of a demand letter or threat of suit.

Help navigate an internal hot potato

A trusted lawyer can be a great resource when human resources wants help working through an internal disagreement that might be the backdrop for a lawsuit if not handled appropriately.   Human resources, even the in-house counsel, might be unable to steer effectively through office politics to get the right result. But outside counsel holds a fiduciary duty to the corporate client and not to the individual managers intertwined in the situation. The lawyer must steer management to the best decision for the business. This may be a struggle for an attorney uncomfortable dealing with challenging egos. Fortunately, most lawyers are known for having sufficient “self-confidence” to match the personalities of company executives.

Confronting bad optics or bad timing

The boss hands you a list of names to terminate in a layoff. You notice he has two people out on worker’s compensation leave, a woman who announced her pregnancy the prior week, and the only black person in the department.  Right, call the lawyer. My example obviously pushes the extremes to make the point. Human resources really must reach out to their legal support when placed in objectively difficult fact patterns. The law does not recognize a “human resource privilege”, but we clearly respect the attorney-client communications privilege. There may be an explanation for the optics or timing, although not likely in every situation in my hypothetical. A good lawyer can help walk management through the facts and, if artfully done, might present the scenario so that the manager comes to the best conclusion with a gentle nudge and not forceful commands.