• June 5, 2018

Update (June 5, 2018): In last Thursday’s post, below, we mentioned Life Time, Inc.’s “bringing the hammer down” on former employees for violations of their non-competition agreements (and related alleged wrong-doing). Life Time prevailed on its motion for a preliminary injunction yesterday. Congratulations to Life Time and its lawyers, Patrick Martin and Stephanie Willing from Ogletree Deakins’ Minneapolis office.

Original post (May 31, 2018): In one federal courtroom in Minnesota this week, eminent civil litigators have been doing battle in a high stakes “bell-wether” trial, as part of the Bair Hugger Forced Air Warming Products multi-district litigation against defendants 3M and Arizant. (We previously covered an aspect of the litigation (e-discovery) here.) Late yesterday came the news of a defense verdict (a verdict in favor of 3M) Congratulations to the entire defense team!

On the plaintiff’s side, among many other lawyers, are Michael Ciresi, Jan Conlin, and Genevieve Zimmerman. On the defense side, among many other lawyers, are Jerry Blackwell and Corey Gordon. (Here are some pretrial letters to the court on trial logistics (here and here)). All of these prominent Minnesota civil litigators spent large parts of their professional lives at Robins Kaplan before leaving that law firm. In other words, the Bair Hugger trial is a Robins Kaplan alumni party! (So where was my invitation?)

Poor Robins Kaplan!

Robins invested years and untold sums of money training and supporting all of these lawyers. Then these lawyers all moved a few blocks away, taking Robins clients with them, and, even worse, taking billions of terabytes of Robins-nurtured talent.

Law firms have no way to combat such “brain drains” because professional ethics rules prohibit non-competition agreements. The policy justification behind this rule is that restrictive covenants (i.e. non-competition agreements or “non-competes”) not only limit attorneys’ professional autonomy but also limit the freedom of clients to choose a lawyer.

Ironically, in another federal courtroom in Minneapolis/St. Paul this week, lawyers for Life Time, Inc., the home-town fitness powerhouse, are trying to bring the hammer down on eight former Life Timers for allegedly violating their non-competes (and other contractual commitments) (and here is the response of the former LT employees).

Apparently, what is good for the goose is not so good for the lawyer.

Is this sacredness of the attorney-client relationship, which bars lawyers’ and law firms’ restrictive covenants antiquated? Why are lawyers so protective of their professional autonomy and their clients’ right to choose a lawyer in a culture where, aside from lawyers, we seem so solicitous of employers’ “right” to handcuff other employees?

As a former large firm lawyer myself (at Robins Kaplan, among others here in town), I fully appreciate that I owe a great debt to the large firms. They gave me such great training, resources, and connections. I owe them a lot but I owe them no money. I have personally and directly benefitted from the bar on the application of restrictive covenants to lawyers.

But do these restrictions on restrictions of lawyers ultimately hurt the public? If not, what is the rationale for allowing them in so many other areas of commercial life? Why are professional trainers entitled to less autonomy? Why are their clients less entitled to stay loyal to their trainers?




Leave a Reply

Your email address will not be published. Required fields are marked *