Jonathan Bristol was sued at least four times at two different law firms for malpractice prior to his departure from the dissolving Thelen firm. Did that concern Winston & Strawn when Bristol joined it in November 2008? We don’t know. Winston did not respond to a request for comment for this story.
It is standard for potential lateral partners to get questions during the recruiting process about whether they’ve faced malpractice claims. Most law firms deal with this issue extensively in questionnaires that recruits fill out before they receive a formal offer. However, recruiters and industry experts say that the level of scrutiny that a candidate’s responses get varies from firm to firm and from candidate to candidate. “It all depends on how many dollar signs” a potential partner brings along, says New York legal recruiter Marina Sirras. She says firms may be willing to take on a partner perceived as risky if there’s a bigger potential financial upside.
And when partners leave a collapsing firm such as Thelen, a recruiting process that typically takes months can be compressed to days ["The Accidental Laterals," February 2009]. Partners leaving a dissolving firm are eager to find a new home quickly, and firms recruiting those partners know that there will be others looking to acquire talent in the law firm equivalent of a fire sale. “There is more of a sense of urgency that this person may be picked up by another firm, so we need to get them as quickly as possible,” says Dan Binstock, a recruiter at Garrison & Sisson in Washington, D.C. He says firms often give partners leaving dissolving firms the benefit of the doubt because their motives are obvious. “There’s less focus on dotting all the i’s and crossing all the t’s because there’s an assumption this person is leaving for a good reason,” he says.
Likewise, large law firms tend to see other large law firms on a candidate’s resume as a seal of approval, says Katten Muchin Rosenman partner Michael Verde. A former New York police sergeant, Rosenman now advises clients on risk management issues. Big law firms “tend to rely on the judgment of other big law firms. They think, ‘If this guy worked there, he can’t be a bad egg,’ ” Verde says.
It would be difficult to do a “truly comprehensive search” of malpractice claims brought against a candidate, given the number of venues where such a claim could be filed, Verde says. Even if such a search were possible, it would still miss many large malpractice issues involving important firm clients, since they’re typically dealt with long before they rise to the level of litigation. Besides, Verde says, there is no screen that takes into account the vagaries of human nature. “The fact of the matter is that you will always have very good attorneys who will suddenly do something crazy and stupid,” he says.
