10 Considerations When Your Departing Employee Is A Lawyer
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A departing lawyer who has not yet left a firm should exercise caution in unilaterally notifying other clients, such as former clients or clients for whom the departing attorney has not provided material representation.
Notice of a lawyer’s departure from a firm need not be given to former clients of the departing lawyer or to all clients of the firm.
The opinion provides that law firms’ notification requirements on departing lawyers “cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.”
The opinion also prohibits law firms from denying a departing lawyer access to “adequate firm resources” during the transition period. This means that the firm cannot force the departing lawyer to work remotely or at home. Furthermore, the departing lawyer must have the ability to receive “necessary assistance from support staff.”
A departing lawyer and the lawyers remaining at a firm have ethical and legal obligations to firm clients and to each other, and both the firm and departing lawyer have legitimate business interests in the future practice of law. These duties and interests may be difficult to harmonize.
36 Rule 4-1.1 requires competent representation of the client, and Rule 4-1.3 requires that the representation be provided with diligence. Rule 4-5.1 requires partners and other supervisory lawyers in a firm to make reasonable efforts to ensure the firm has polices in place assuring all lawyers within the firm provide competent and diligent representation and comply with all other duties in the Rules of Professional Conduct. The rule further requires lawyers in a firm with direct supervisory authority over another lawyer to make reasonable efforts to ensure the supervised lawyer complies with the rules, and under certain circumstances, a managerial lawyer can be responsible for misconduct of a lawyer under the manager’s supervision. 37
Because firm lawyers have a fiduciary duty to treat each other fairly and honestly, 16 most ethics advice strongly encourages lawyers to notify the firm of an impending departure before notifying clients. 17.
The notice may be written, personal, or “by some other means,” provided it is “professional in nature and content,” avoids solicitation, and assists the client in exercising its right to choose its counsel. 33
Disputes and disciplinary concerns are minimized when lawyers abide by four categories of departure-related ethics obligations: (1) communicating notice; (2) ensuring competent and continuous representation; (3) protecting confidentiality and resolving conflicts of interest; and (4) avoiding misconduct.
Understanding relevant ethics obligations is a necessary step in reconciling lawyers’ departure-related duties, but it does not end the inquiry. Where ethics rules are silent, applicable law may impose duties.
Notice of a lawyer’s departure from a firm need not be given to former clients of the departing lawyer or to all clients of the firm. Notice is to be provided to current clients for whom the lawyer has provided “material representation,” for it is those clients for whom the lawyer’s departure occasions a “material change” in the circumstances of the representation. 18 Other ethics advice describes the proper recipients of notice as clients with whom the departing lawyer has had “significant client contact.” 19 Because of the importance of providing clients with notice, it is advisable in a questionable case to err on the side of caution by informing the client. 20
What’s the first question a lawyer should ask the client in a departing employee case? I say it’s “what company documents did the employee take?” As I explain in this video, the departing employee almost always takes—or keeps— something, even if it’s not for any sinister reason.
Usually the departing employee signed an employment agreement that includes a confidentiality clause or “NDA.” Often the NDA will require the employee to delete or “return” confidential company documents after termination of employment.
Texas has a lot of case law on non-competes. If you’ve got 30 minutes you can watch my video series Essentials of Texas Non-Compete Litigation.
Big trade secrets cases tend to grab headlines. There was the Waymo v. Uber trial, where Google accused a former employee of stealing its confidential self-driving car technology. There was the recent Zhang case where the FBI arrested a former Apple engineer as he was getting ready to board a plane to China with Apple’s secret technology for .
This means that when a departing lawyer was a client’s primary attorney, firms should not assign new lawyers and try to displace the departing lawyer “absent client direction or exigent circumstances arising from a lawyer’s immediate departure from the firm and imminent deadlines needing to be addressed for the client.”.
The opinion emphasizes that law firm management has obligations under Model Rule 5.1 to establish “reasonable procedures and policies to assure the ethical transition of client matters when lawyers elect to change firms.”
The opinion emphasizes that clients determine who will represent them, not anyone else. “Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm,” the opinion states. This means that when a departing lawyer was a client’s primary attorney, firms should not assign new lawyers ...
This means that the firm cannot force the departing lawyer to work remotely or at home.
Law firms also “cannot prohibit or restrict access to email, voicemail, files and electronic court-filing systems where such systems are necessary” for the departing lawyer to “represent clients competently and diligently during the notice period.”. Give us feedback, share a story tip or update, or report an error.
No Unreasonable Notice Periods. Law firms have an ethical obligation not to impose notification requirements on departing lawyers that would thwart client choice of counsel or prohibit departing lawyers from providing diligent representation to clients during transition periods, according to the opinion.
The reasons are manifold and include personality conflicts, culture, career advancement, boredom or even following a spouse or significant other to another city or state.
See the ABA Commission on Ethics and Professional Responsibility, which says: “The departing lawyer must also consider legal obligations other than ethics rules that apply to [his/her] conduct when changing firms, as well as … fiduciary duties owed the former firm.
It could be a spouse or partner, a good friend, shop steward, or even a counselor in an employee assistance program (EAP).
If you’re thinking about filing suit, you probably want to speak to a lawyer. Confusing claims: There are some employment laws on the books that you might not be aware of, so you might have a case you don’t know about. And there are some laws you think exist, that don’t.
To attend a disciplinary meeting (take good notes, don’t sign anything except a form acknowledging receipt of the discipline , and sign “as to receipt only, rebuttal to follow); To sign documents you understand, like applications, insurance forms, and tax documents.
When a work situation has reached a level where initiating an agency complaint or process is being considered, an employee should approach the decision as objectively as possible, despite the fact that at such a point the situation likely is very emotionally charged.
Being taken seriously: Some employers don’t take you seriously unless you have representation.