Ethical Obligations When a Lawyer Changes Firms
A. Ethical Obligations When Changing Firms Two primary directives must be remembered when lawyers change law firms: 1) lawyers have a duty to tell “their” (not all clients of the firm) clients that they are leaving; and 2) clients are not chattels – the firm and departing lawyer cannot decide which clients can stay and which can
Dec 04, 2019 · Firms, departing lawyers must protect client interests, opinion says. Advises on “orderly transition” of client matters. Attorneys are more mobile in their careers, and a new American Bar Association advisory opinion addresses obligations when a lawyer switches firms. A departing lawyer and the firm should work together to meet ethical responsibilities to …
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. 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 …
ABA issues new ethical guidance for when lawyers leave. 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. The primary reason for this trend is the increased …
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. The departing lawyer and the responsible members of her firm who remain must take ...
When a lawyer ceases to practice at a law firm, both the departing lawyer and the responsible members of the firm who remain have ethical responsibilities to clients on whose active matters the lawyer currently is working to assure, to the extent reasonably practicable, that their representation is not adversely affected by the lawyer's departure.
The impending departure of a lawyer who is responsible for the client's representation or who plays a principal role in the law firm's delivery of legal services currently in a matter ( i.e., the lawyer's current clients), is information that may affect the status of a client's matter as contemplated by Rule 1.4. 2 A lawyer who is departing one law firm for another has an ethical obligation, along with responsible members of the law firm who remain, to assure that those clients are informed that she is leaving the firm. This can be accomplished by the lawyer herself, the responsible members of the firm, or the lawyer and those members jointly. Because a client has the ultimate right to select counsel of his choice, 3 information that the lawyer is leaving and where she will be practicing will assist the client in determining whether his legal work should remain with the law firm, be transferred with the lawyer to her new firm, or be transferred elsewhere. Accordingly, informing the client of the lawyer's departure in a timely manner is critical to allowing the client to decide who will represent him. 4
A lawyer moving to a new firm also may wish to take with her files and other documents such as research memoranda, pleadings, and forms. To the extent that these documents were prepared by the lawyer and are considered the lawyer's property or are in the public domain, she may take copies with her.
A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.
Any initial in-person or written notice informing clients of the departing lawyer's new affiliation that is sent before the lawyer's resigning from the firm generally should conform to the following:
Two primary directives must be remembered when lawyers change law firms: 1) lawyers have a duty to tell “their” (not all clients of the firm) clients that they are leaving; and 2) clients are not chattels – the firm and departing lawyer cannot decide which clients can stay and which can go – the clients decide. Lawyers must keep clients informed so that clients may make informed decisions about what the clients want to do. However, lawyers who are leaving need to tell the firm first, and then communicate with clients.
Lawyers rarely stay with the same law firm their entire careers. When lawyers leave a firm, there are certain ethical obligations, client relations issues, and other duties that arise. This article will only address the ethical and professional considerations when lawyers change firms and not any tort, contract, or employment law issues.
Arizona Opinion 99-14 provides some guidance on when a departing lawyer may communicate directly with certain firm clients. A departing lawyer who has had “significant personal contacts” with the client, should inform the client that the lawyer is leaving the firm. Note: this does not mean that an associate who met a client once or twice and has prepared discovery requests has had “significant personal contacts” – the standard is that if the client were asked “which lawyer(s) at the firm represent you?” the lawyers mentioned would be those that have had “significant personal contacts.”
If a named partner leaves a law firm, the firm cannot continue to use that lawyer’s name in the firm name UNLESS the named partner is retiring from the practice of law – then the firm may continue to use the retired partner’s name. Ariz. Op. 91-11. If, however, the partner is leaving to start a different firm or join a new firm, the old firm name must change. If a lawyer leaves to join the bench, the firm name must change. Firm names may not include the names of nonlawyer employees and must be factually accurate. For instance, if the firm name is “Smith and Associates,” the firm must employ more than one full-time associate. Similarly, “Law Offices Of John Smith” requires that Mr. Smith have more than one office. “Group” connotes more than one attorney.
There is some disagreement regarding how fees earned after a law firm split may be apportioned between the firm and the departed lawyer, when the case initiated with the old firm. For example, in contingent fee cases where some or much of the work was performed at the existing firm, but the case is going with the departing lawyer, the firm and lawyer must agree how the contingent fee will be apportioned among them, based upon their respective contributions to the case (i.e., quantum meruit) or based upon terms in the partnership agreement.
Remember that firm resources (and TIME) cannot be used by departing attorneys to start establishing their new firm. While it is necessary for a departing lawyer to interview and/or arrange office space for a new firm while still employed at the “old” firm, lawyers cannot use old firm resources or work time for these endeavors. Nor can they copy firm proprietary information, such as forms and websites, to use for their new firm without firm consent (unless the forms are not proprietary to the firm but court or government templates). Not only is this dishonest (a violation of ER 8.4(c)) but it could be a business tort.
In addition to confirming that a lateral is not an opposing counsel on pending litigation that could conflict the firm, law firm management always (no matter the size of the book of business) conduct basic due diligence for every lateral interviewee, including checking at least the following:
Lawyers who leave their firms and their departing firms have ethical obligations toward the clients of the departing lawyers. These include the duty of communication and the responsibility to enact reasonable notification periods for lawyers who are leaving their firms. Furthermore, law firms cannot restrict departing lawyers’ access to files ...
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 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 ...
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.”
How much information may a job-hunting attorney tell a potential new firm about the current firm’s business, such as identifying clients? Both the prospective firm as well as the attorney must be able to ensure that no conflict of interest will take place should the attorney and prospective firm decide to work together.
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.
Most lawyers no longer join law firms expecting to stay until retirement. Several times over the course of a legal career, a lawyer may require ethics-based guidance in addressing the thorny issues surrounding a lawyer’s departure from a firm. 2. A departing lawyer and the lawyers remaining at a firm have ethical and legal obligations ...
Equally important is a lawyer’s duty of honesty and fair dealing toward other affiliated lawyers.
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
Today attorney mobility refers to the ritual of attorneys changing firms on a regular basis to improve one’s financial and equity status.
In today’s age of mobility, an ounce of prevention is worth a pound of cure as a departing attorney wants to avoid future litigation with his/her former firm. Be honest and maintain your ethical and fiduciary duties to your clients and your partners.
As in any business venture, a law firm partner's fiduciary obligations prohibit the lawyer, prior to departure, from recruiting other owners or employees to join or follow him in leaving the firm. The standard may be less strict for firm lawyers who are not partners.
Although the departing lawyer may properly notify clients of planned departure, the lawyer may not, prior to departure, solicit or otherwise lure firm clients. This is particularly true if the luring is concealed from firm colleagues or involves a less than honest description to those colleagues of pre-departure contacts with clients.
1. The ABA Ethics Committee concluded that Rule 1.4 requires pre-departure notification to affected clients in all circum stances. However, the CBA's Committee on Professional Ethics slightly parted company with the ABA. It concluded that a pre-departure notice to a client "is ethically permissible, but not mandated ....".