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I left a small firm with a number of large cases outstanding that were going to trial/mediation about 6 months after I left. I did not offer to remain of counsel as I was switching to prosecution. I really do not think it is necessary, especially if you give at least 30 days notice. The former partner found another associate with in a couple days of me leaving and they were able to get up to speed. I would occasionally pick up the phone to answer tech support questions as I knew the e discovery software better than anyone else.
Compare an associate at the same firm who left with a week's notice a week before a two week trial which he was to second chair. That burned a lot of bridges and nearly lost the case. Luckily I had enough knowledge to be able to hop on and get the case to settlement.
I’m in a similar situation now also, would like to know for me too!
I'm assuming these are all contingency cases, because otherwise you'd just demand a fair billable rate. I'm also assuming you aren't planning on giving any clients the option of coming with you, or sending letters, so you probably aren't "lead counsel" or sole counsel on any cases, and didn't bring any cases. Because all of those are their own circumstance.
IF that's the case, and there aren't any trials come up say, before July 1, you aren't leaving your boss in that much of a lurch, and they're probably just going to bring in a replacement. If you know the clients or cases particularly well - but still can't take the clients with you - then what you should demand depends on what role you'll be taking on the cases. Are you going solo? That's probably the only situation where what you describe would work. I've had a couple of friends leave their jobs in different states. One was doing MDL work, and was lead counsel on a bunch of trials scheduled to go in the MDL. He negotiated a 2/3 fee split on those cases. Basically, he worked them up, fronted the risk, and paid them a referral fee. Another friend left a more general (but large regional plaintiff firm) PI practice, and continued as a solo doing her own thing, but co-counseling existing (and some future) cases on a 50/50% fee split.
Those are the high end situations. If you're going to second chair them, decide their value, decide what you add to the process, and make an offer - 25%-33% of the fee, maybe, with your boss taking on all case and trial expenses. Don't be greedy, but don't be weak. If you really are essential and have valuable knowledge, second chairing for 10% of the fee isn't going to be fair to you, unless you know the cases are homerun, high value cases.
Well, sorry for my long-winded response then. I'd demand whatever hourly rate is being charged to the client for your time,or something very close to it.
Consider liability issues with staying on even in an of-counsel role. When I parted ways with my prior firm the malpractice carriers I talked to for quotes were not excited about the possibility of me being in an of-counsel position. I ended up doing a clean separation so at the end of the day it was a moot issue, but I was very worried that if something happened (either my mistake or the old firm’s mistake) that there would be finger pointing and that both my carrier and their carrier would have carved out exceptions to coverage of my work in the of-counsel role. You will no longer be in control of what your firm does once you leave. They can help or hurt your ability to properly handle the case if you stay in any capacity.
Also, there are almost always hurt feelings when someone leaves and/or is pushed out of a firm (particularly small firms). It may be really difficult to stay in an of counsel position regardless of how amicable the “break-up” is.
That is a helpful consideration. Thank you