Some partners' gardens have probably never looked better.
As partner mobility increases, it is estimated that one in three law firms now have gardening leave clauses in their partnership deeds and many others have the issue under review. The proportion among City firms is even greater.
But does it work? Or is the practice counter-productive, leaving partners frustrated and clients enraged when they find their favourite lawyers have suddenly been taken out of
circulation?
The rationale behind gardening leave is to allow firms the opportunity to retain their clients. With the defecting partner banned from the office and denied contact with the client, the firm has breathing space to reorganise the department and re-market itself.
Wilde Sapte is one firm that has the clause in its partnership deed. Managing partner, Stephen Blakeley, is convinced of its merits: "In the right cases, it can be extremely effective," he says, "If it is one of your core practice areas, where a client is serviced by several other partners, it gives you that period to establish to the client that you have something to offer them."
But Blakeley is realistic about its limitations. "If a partner is in a niche practice, or you have no hope of keeping the clients, then it is a waste of time," he says. "You may as well keep the partner working through his or her notice period and make some money."
Whether or not it is enforced, gardening leave can still be a useful, if expensive, negotiating tool. Faced with the threat of being out of action for months, partners can be persuaded to accept other conditions when they leave. "It is a useful bargaining tool," says Georgina Keane, head of employment at Richards Butler.
Simon Janion, of recruitment consultants Eagon Janion, has found that it can work as a deterrent to partners leaving. "One major effect is to put partners who are in two minds about leaving off the idea," he says. "However, once a partner's mind is made up, that's it. If they're going to go, they're going to go."
Keane warns that firms need to be careful. "If it is a big client and they find they can't use a favourite lawyer in one practice area, they may take all their business away from that firm," she says.
Whether it is effective or not, there has to be a limit on how long firms can keep their partners on leave. Clifford Chance introduced a 12-month clause in its partnership deed after the acrimonious departure of Andrew Wilkinson in 1997, and other large firms are reputed to have similar periods in the small print.
So how long is too long? Keane thinks six months is enough. "It can be a positive thing if it is for a short period. But 12 months is oppressive. It can be soul-destroying to sit around all day doing nothing."
Ronnie Fox, senior partner at Fox Williams, agrees. "A lawyer survives by staying up-to-date," he says. "He very quickly loses his edge. Long periods of gardening leave are both expensive for the firm and unhappy for the individual. If some one is going to go, then arrangements must be made to avoid a long period of gardening leave which helps nobody."
It is not always a bad experience. Douglas Colliver announced his departure from Norton Rose at Christmas 1997, and spent just over four months on gardening leave. He is keen
to point out that his departure was not acrimonious and that he actually found his time off enjoyable.
"It was a welcome break," he says, "An opportunity to collect my thoughts and prepare for my new appointment. And to learn German, which was important for my new role."
But regardless of his own experience, it is not a practice Colliver approves of. "It could be construed as a sign of weakness, a case of cutting off your nose to spite your face," he says. "It doesn't happen with US firms. They have a completely different culture. They take the view that some partners will want to leave from time to time and that, inevitably, they will take some clients with them. English firms should be confident enough to withstand defections. US firms would see gardening leave as an infringement of both civil liberties and client freedom."
Some partners faced with an extended period of gardening leave may see it the same way. The legal situation, at least with regard to law firms, has yet to be tested in the courts, although Andrew Wilkinson was reported to be on the verge of taking legal action against Clifford Chance in 1997 before the firm relented and allowed him to leave.
Presumably, Wilkinson's argument would have been that he was not legally bound to sit out his gardening leave because the clause had not been inserted into the partnership deed at that point. This is one legal point that has been clarified in the past year. Last April, in a case
involving a bookmaker, Steve Tucker, and his employer, William Hill, the Court of Appeal ruled that employees cannot be sent on gardening leave unless there is a specific clause in their contract.
"In my view, in the absence of a clear and specific agreement in the partnership deed, then the same would apply to an equity partner," Fox says. "It used to be thought that as the employer is paying, he has the right to keep somebody at home. Now they are under a duty to provide an employee with work as well," he adds.
The remaining grey area is the length of leave. "It is interesting that it hasn't been contested yet," Keane says. "I think this is because deals are often done with the partners concerned and the full term is often not imposed.
"I think gardening leave would be upheld in employment cases if it is for a short time, that is, not to the point that somebody's skills would actually atrophy. In this respect, 12 months is unreasonable. It could well come to court if a firm tried to impose this length of time," she says.
"It would also be unenforcable if a firm was considered to be using it as a tool to deter partners from leaving. This is not a legitimate reason – firms can only use it to protect their business, not to prevent staff defections."