Many lawyers may find themselves ready to leave their current law firm and either move on to a different firm or start out on their own. Either way there is always the issue of how to handle current clients and cases. Recently, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 489, “Obligation Related to Notice When Lawyers Change Firms.” Because no specific Model Rule governs the ethical duties of departing lawyer and their firms, the opinion relies on three basic principles:
- Clients choose their lawyers
- Lawyers must act in the best interest of their clients
- A lawyer’s right to practice cannot be restricted
With these principles, Formal Ethics Opinion 489 guides a lawyer who is leaving a firm. The lawyer should first look to see if the firm has a policy in place explaining the steps the firm and the departing lawyer will take to fulfill their ethical duties. The policy may require departing lawyers to observe a specified notification period prior to departure. Such a notice period helps to ensure that the departing lawyer and the firm can cooperate to provide an orderly transition for all client matters. However, the notification period cannot “unreasonably delay the diligent representation of the client or unnecessarily interfere with a lawyer’s departure.” Because non-competition agreements are unenforceable, the policy cannot contain a non-competition provision. Nor can the notice period be enforced if it restricts the lawyer’s right to practice.
Once a lawyer decides to leave a firm, the lawyer should contemporaneously inform both the firm and his or her clients. Although the Model Rules do not prohibit the lawyer from unilaterally notifying clients of the departure, ideally the firm and departing lawyer would jointly communicate with the clients “with whom the departing lawyer has had significant contact.” The departing lawyer and firm may notify clients separately but must not make false or misleading statements. The firm may not prohibit the departing lawyer from soliciting firm clients. The clients must be given the option of remaining with the firm, going with the departing attorney, or choosing another attorney.
It is important to understand that clients are not property. During the notification period, the firm must not deny the departing lawyer “access to adequate firm resources needed to competently represent the client.” Once the lawyer has departed, the firm must make sure the lawyer’s email and voicemail contains appropriate messages about the lawyer’s departure, including “an alternative contact at the firm for inquiries.” The firm should assign a supervising lawyer to review the departed lawyer’s firm emails, voicemails, and paper mail in accordance with client directions and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer.
The departing lawyer must assist in the organization and updating of client files. The lawyer must also return all firm property, both intellectual and physical. The lawyer should cooperate with the firm to delete or return all electronic and paper client data, including data on the lawyer’s personal electronic devices. However, the lawyer may retain the “names and contact information for clients for whom the departing lawyer worked while at the firm in order to determine conflicts of interests at the departing lawyer’s new firm and comply with other applicable ethical or legal requirements.
Law firms should review their policies to determine whether they address the issues that arise when a lawyer departs. Both law firms and departing lawyers should heed the ABA’s message that they should cooperate in order to serve their clients’ best interests, whether the clients stay or go. Lawyers of Distinction lawyers also help others in a community, and learn more about this community in the Lawyers of Distinction FAQ.
