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How to Legally Fire Staff and Protect Client Confidentiality

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By Gabriella Khorasanee, JD on July 29, 2013 1:13 PM

Firing employees isn’t easy. But, with so many talented people out of work, it’s hard to let the actions of your incompetent staff slide. Why pay people for subpar work when you can have some of the best and brightest working for you?

Whether you are overstaffed and need to lay people off, or want to surround yourself with a better team, there will come a day when you need to fire someone. Protect yourself, and your clients, by knowing how to fire someone not just legally, but intelligently.

1. Train Your Employees

This where you need to be very proactive. Non-lawyers as well as lawyers, must know the importance of client confidentiality. This ethical obligation must be ingrained in your staff and in your firm culture. If client confidentiality is taken seriously while staff is working at the firm, then they will take it seriously when they leave, especially if they ever want to work in the legal field again.

2. Write, Then Use the Employee Manual

Let employees know up front the kinds of behaviors that will not be tolerated, so there are no surprises down the road. You may also want to create a procedure for dealing with warnings or complaints. For example, each warning should be in writing, be explained to the staff person, and signed by the staff person to show they understand the warning, and how to cure the problem. You may also lay out a certain number of warnings that will be tolerated, for example, after three warnings, they're out.

3. Create a Paper Trail

You're a lawyer -- if anyone knows the importance of building a case -- it's you. If you have a problem with a staff member, then you must create a paper trail of complaints and warnings. If a client makes a complaint about someone in your office, ask for a copy on their letterhead in writing. Same with warnings; if the staff person has done something actionable, create a written warning and meet with the staff person. Keep these documents in the employee's file.

4. When Not to Fire

There are certain instances where you may be walking on thin ice when it comes to firing. If you are firing for reasons of discrimination, or because the employee is a whistleblower and filed a complaint against you, you should think twice before you act. Firing for the wrong reasons can get you into big legal trouble. You'd think this would be obvious to those in the law, but not always.

5. The Talk

When you actually sit down to fire your employee, don't let emotions get the best of you. Stay cool and even tempered, and don't use inflammatory language. Try to stick to the warning and complaints in the file to avoid making it too personal. You may want to remind your staff of their client confidentiality obligations, and what repercussions would follow should any violations of trust take place.

There are probably a lot of other things you'd rather be doing than firing employees. But, the best way to deal with a problem staffer is to address the issue swiftly. The longer you let it percolate, the longer it will take to create your staff dream team.

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