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Jilted Associate Fights Back

Vivia Chen

August 20, 2010


Aspiring big-firm associates must have infinite patience. Or deep wells of hope. How else to explain why so few of them have taken legal action against firms for reneging on their job offers?

But Sarah Martinez, a 2008 graduate of the law school at the University of California at Davis, seems to have run out of both. She just did the unthinkable: She's suing San Francisco's Howard, Rice, Nemerovski, Canady, Falk & Rabkin for rescinding her job offer.

Here's what The Recorder says about the facts in her complaint: Martinez got an offer from Howard Rice after her summer clerkship in 2007. Before she started her job in fall 2008, the firm told her that her position was being deferred a year. Then, in May 2009, the firm rescinded her job offer altogether. By then, she alleges, she was past the point of marketability to other big firms.

The added twist here is that Martinez also claims discrimination based on her gender and Mexican ancestry. She alleges that during her deferral, "Howard Rice actively recruited and hired white associates, especially white male associates," reports The Recorder.

I don't have the facts to comment on the merits of the discrimination claims. But that doesn't matter. I'm more intrigued about whether Martinez will stir a revolution among the legions of jilted associates across the land and lead them to sue the firms that seduced and dumped them. 

Does she have a shot at winning? I'm rusty on contract law, but I'd guess that much depends on what the firm's offer letter says--namely, if the letter mentions anything about the possibility that the offer could be withdrawn.

"Firms typically have written agreements with incoming associates, including at-will clauses, which allow termination at any time without cause, and mandatory arbitration of any dispute," said Nancy Abell, head of Paul Hastings's labor and employment practice, in an e-mail. Her guess: Howard Rice probably has "a strong defense."

But San Francisco employment lawyer Mark Schickman isn't so sure that the "at-will" clause is an iron-clad defense in California. "There are clear breach of contract and detrimental reliance issues here," he says. He adds that California labor law is particularly protective: "An at-will clause won't give you a complete pass if you induced someone to move within or across state lines to take a job."

My quick takeaway is that if you're going to sue, make sure your firm has a Golden State nexus. "That's a pretty good general rule, that you're always better off in California," says Schickman.

Still, suing a law firm anywhere is a "real career destroyer," says Schickman; he adds that Martinez probably filed suit out of a sense of desperation. Martinez's lawyer, Kathleen Lucas, essentially confirmed that to The Recorder: "[Martinez's] view is that her career is already so damaged, and that, frankly, the money she's already lost is so significant."

Will others in Martinez's situation take her course of action? I don't think so--not yet. For now, firms can probably still bank on the fact that those young lawyers, however embittered, won't do anything that will rile potential employers. Law is still awfully clubby.

But what happens if those potential employers don't materialize anytime soon? Will those jilted associates scamper quietly away, or will they hit back at the firms that had wooed them with promises of a bright future in Big Law that they'll probably never have?

Those of you left high and dry by law firms have been very quiet. If you're one of them, won't you please tell me what you're doing--and if the idea of suing a firm has crossed your mind?

Do you have topics you'd like to discuss or tips to share? Email The Careerist's chief blogger Vivia Chen at [email protected].

Painting: Liberty Leading the People by Delacroix


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In a legal services market where firms are king, let's just say "uneasy lies the head that wears a crown".


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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: [email protected]

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