Formal Ethics Opinion 99-414 (Downloadable PDF) A lawyer's ethical obligations upon withdrawal from one firm to join another derive from the concepts that clients interests must be protected and that each client has the right to choose the departing lawyer or the firm, or another lawyer to represent him.
Full Answer
ABA Formal Opinion No. 99-414 (Sept. 8, 1999) explains attorneys’ and firms’ ethical obligations in the face of an attorney’s changing firms, per the Model Rules of Professional Conduct.
Amid this trend, the American Bar Association Standing Committee on Ethics and Professional Responsibility released new guidance in December for lawyers and their firms exploring ethical obligations when lawyers leave for another firm.
Lawyers have the right to change firms, and from all indications the lateral movement of lawyers from one firm to another has reached a fever pitch during the past few years. Departing lawyers and their firms have an ethical duty to protect clients’ interests during a transition.
Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation (a service to the public defender community).
99-414 (Sept. 8, 1999) explains attorneys’ and firms’ ethical obligations in the face of an attorney’s changing firms, per the Model Rules of Professional Conduct. One of the first things that the Opinion No. 99-414 brings out is that attorneys have a duty and ethical obligations upon withdrawal to disclose “pending departure in a timely fashion to clients for whose active matters (s)he currently is responsible or plays a principal role in the current delivery of legal services.”
Luckily for the entire mobile set of attorneys, the ABA issued Formal Opinion 09-455 (Oct. 8, 2009) . Opinion No. 09-455 states that “In most situations involving lawyers moving between firms, however, lawyers should be permitted to disclose the persons and issues involved in a matter, the basic information needed for conflicts analysis.” Basic information should only include “persons and issues involved in a matter.”
Both the departing attorney and current law firm have clear ethical obligations to ensure clients involved are provided legal services. A large portion of that is to promptly give notice to involved clients, preferably in a joint announcement of the departing attorney and current law firm.
An attorney who is departing a firm is obligated to do his or her due diligence to her current employer, be the terms of the career change perfectly amicable or otherwise. Before making solid plans to leave, (s)he should check his or her partnership agreement with their current firm.
ABA Model Rule 1.16 (d) states, in part, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests…” A client’s files belong to the client and not to a firm or attorney. Care must be taken to ensure the files follow the client, even though the client may still owe the current firm fees.
The process of switching employers is extensive for any professional, but particularly for attorneys, as they are professionally obliged to consider what is in the best interest of their clients at any given turn. By doing his or her due diligence and maintaining open lines of communication with their current employer and clients, any legal professional looking to a career transition is bound to undertake the venture both successfully and ethically.
Most firms won’t place a non-compete clause in the professional agreement – it would violate ABA Model Rule 5.6 (a), which prohibits an agreement that “restricts the right of a lawyer to practice after termination of the relationship.” However, be aware that a firm is not unlikely to reduce equity or profits that have been earned.