After six years as the general counsel of Affymetrix, Barbara Caulfield resigned and joined Dewey & LeBoeuf. Nothing unusual, but she brought with her three litigation lawyers from the law department. This news in Corp. Counsel, Vol. 15, July 2008 at 20, made me wonder about the propriety of a general counsel negotiating to leave a company for a law firm and recruiting other lawyers from the department to leave as a group at the same time. The ethics and conflicts of it all make me shake my head.
The piece says that Affymetrix will use that team of four lawyers to handle its litigation – what else can it do? All companies are vulnerable to having their inside lawyers leave, ripping out their institutional knowledge and the intimate familiarity with the legal and business issues at hand. To join a nearby law firm as a group and to offer to handle the gaping hole that remains strikes me as collusive hardball.
Caulfield murmers, perhaps ingenuously: “We just got a great call with a great offer, and you’ve got to consider those.” From my experience as a consultant and law department employee, a huge amount more must be considered and negotiated for such a wrenching change to occur than that innocent carrot implies. How many other law firms might extend great offers to clumps of in-house lawyers, including the general counsel, and win this different kind of competitive bid? Perhaps general counsel will have to sign no-poaching agreements.