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“Different Strokes”: Some of the Ways in Which Executives in Education, Finance, Industry and Media Can Best Use the Services of an Executive Employment Attorney

How should an executive, whether a college president, a finance executive, or a senior leader in media or industry, best use an executive employment attorney?

This question arises because even sophisticated individuals use a lawyer on an infrequent basis. As opposed to a physician, where multiple yearly visits are not uncommon, many individuals, including senior executives, resort to a lawyer once every five or ten years, and certain reasons for employing a lawyer — a divorce, a will — are not representative of the various ways in which an executive employment attorney can be helpful over the course of an executive’s career.

As executive employment attorneys, our executive clients consult us when they are being hired, when they have been terminated, and sometimes “in between” these two events, whether their careers are going well or badly.

So here are only a few concrete examples of how our executive clients have tailored our services to their particular needs, and how executive employment attorneys can be most helpful to their clients:

1.     A dean of a major university has been selected to be a college president, and this is her first presidency. Having received the school’s initial offer, she is uncertain as to what can be negotiated (does she have to accept the school’s offer without change?) but she also does not want to miss out on various standard benefits of which she may not be fully aware. She employs us to review the initial offer by the college and give her a memo to suggest what is missing or could be improved, then she takes our comments and handles the negotiations herself.

2.     That is one way to proceed. Another university president is more concerned about interjecting any aspect of his personal business into his interchanges with the Board Chair, so he engages us to handle every aspect of the negotiation for his renewal contract, instructing us to deal directly with counsel for the university. Accordingly, after strategy and advice sessions with us, during which we have prepared draft term sheets and then revised them according to the president’s wishes, the president signs off on our strategy and the proposed terms he desires, and recuses himself from the negotiations entirely. Put simply, he not only trusts us, as executive employment attorneys, to get him the best deal possible, but he wants the protection of being able to attribute any friction in the negotiations — including those rare instances where the Board might misconstrue a proposal from our side as overreaching — to his lawyers, thereby preserving his customary relationship with the Board Chair, a relationship which focuses only on the affairs and exigencies of the university.

3.     Here is yet another way in which our executive employment clients may decide to utilize our services, a sort of hybrid of the first two examples:

A senior finance executive has been offered a new position at another large financial institution, say, for example, a substantial family office. She will be leaving her secure position at a bank to take this new employment opportunity, and she might well be changing roles as well (going, as they say, from the “buy” side to the “sell” side, or vice versa). Because of the nature of the personal relationships involved (she is being hired because the head of the family office is well acquainted with her background and skills), she has already “set” the basic compensation terms in her discussions with the new employer, but there are still a number of financial as well as legal details to be ironed out before an employment agreement can be finalized and signed.

At this point, she instructs us to be in touch with the new employer’s in-house counsel in order to negotiate both the remaining financial and practical details (e.g., bonus, severance, any post-employment restrictions, profit participations, etc.) and to mark up the key legal terms, such as the definition of “Cause” for termination, which we found to be overly broad in the initial draft of her proposed employment agreement.

The foregoing represent only a few of the possible variations on how and when clients want us to become involved in their prospective transactions. The important point is that there is no “one size fits all” rule as to the ways in which executive employment attorneys can profitably assist their clients.

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.