Photo by Diego M. Radzinschi/ALM

Recruiters and law firm clients are not shy about suing each other over fees or representation contracts, but a recent lawsuit involving Texas recruiter Robert Kinney shows that another kind of dispute can arise.

Kinney subpoenaed several Big Law firms seeking placement information for a trade secrets suit his company had filed against a former employee. Only Kirkland & Ellis fought the subpoena—and was chastised by a judge in Austin who said the firm "should be embarrassed" by its actions—in a case that points to another source of potential tension between recruiters and their law firm clients.

In MWK Recruiting v. Jowers, U.S. Magistrate Judge Andrew Austin of the Western District of Texas said in an order filed Monday that he "could not be more disappointed with the manner in which [Kirkland & Ellis] has handled this subpoena."

As described in the order, MWK Recruiting subpoenaed Kirkland in November to obtain names and payment records of placements that former employee Evan Jowers made from 2016 through 2019. Over the course of several weeks, Kirkland partner William Pruitt of Chicago maintained that Kinney should obtain those records from Jowers, the order said. Pruitt wrote in an email to Kinney that if he tried to enforce the subpoena, the firm would ask the court for fees and costs, the order said.

Ultimately, Kinney filed a motion to compel, and Kirkland hired outside counsel to handle the discovery dispute, filing a motion to quash the subpoena and a motion for a protective order.

Kirkland ultimately provided placement information to Kinney. But Austin's order expressed disappointment with how Kirkland handled the subpoena.

Austin wrote, "Pruitt's petty, technical, overly-argumentative emails are a study in what is wrong with civil discovery in our court system today." The fact a law firm was the entity taking that stance makes it more frustrating, Austin added.

Robert E. Kinney of Kinney Recruiting.

Kinney, owner of Kinney Recruiting, said he does not understand why Kirkland would be so secretive about the information he requested for the federal suit his company, MWK Recruiting, filed against Jowers over a noncompete agreement.

"We did a ton of work for Kirkland, I don't know why they decided they wanted to screw with us," Kinney said.

He said six or seven firms did comply with the subpoenas. "Why would you not? It's a simple matter of spitting out an accounting report," Kinney said. He declined to identify those firms, but said they are well-known.

Kinney said fee disputes between recruiters and firms are bound to happen, but not frequently, and for the most part legal recruiting firms and their clients have a cooperative relationship. As evidence of that, he said, he keeps the managing partners of at least half a dozen firms on speed dial.

But litigation between firms and recruiters has made headlines in recent years. In January, for instance, California recruiting company Kossoris Search and Katten Muchin Rosenman settled a lawsuit over a placement fee related to the firm's opening of its Dallas office in 2018. In another instance, Partners Legal Search of Houston, owned by recruiter James M. Wilson, last year sued two partners at Kilpatrick Townsend & Stockton in Houston over a search fee related to their move to that firm.

But Kinney said Kirkland's stance battling the third-party subpoena, which relates to a dispute between recruiters, is an entirely different matter.

Chris Batz, founder of The Lion Group, said rifts between law firms and recruiters can happen more commonly when a firm doesn't pay the recruiter, or someone at a firm doesn't get along with a recruiter.

"It's a sticky thing. It's also a bad press thing," Batz said when those disputes become public in litigation. "Recruiters have to be careful with who they work with."

Root of the issue aside, the federal judge handling the matter did not parse words regarding his own view of Kirkland's actions.

"If anyone should know better than to act this way one would think it would be a law firm that touts itself as having 'lawyers [who] employ innovative pragmatic strategies,' There was not a single thing that K&E did to respond to this subpoena that was 'pragmatic,'" Austin wrote.

He added that "having chosen the stubborn route," Kirkland also asked for attorney fees.

"Apparently it believes obstinance is something worth rewarding. Far from it. If anything, K&E should count itself lucky that MWK did not request fees from K&E, as the court would have been inclined to grant them. Because MWK did not, the court will express its disapproval of K&E's actions only in words and not dollars. Either way, K&E should be embarrassed," he wrote.

Pruitt did not immediately respond to a request for comment. A Kirkland representative did not immediately provide a comment.

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