In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do. The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.
Yesterday, the ABA’s Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. The entire opinion is worth reading. Here’s an outline of the key duties owed to clients.
The duties flow to clients with whom the departing lawyer had “significant client contact.”
Per the ABA Opinion, ‘” ‘significant client contact’ would include a client identifying the departing lawyer, by name, as one of the attorneys representing the client.”
By contrast, the opinion is clear that “a departing attorney would not have ‘significant client contact,’ for instance, if the lawyer prepared one research memo on a client matter for another attorney in the firm but never spoke with the client or discussed legal issues with the client.”
Most Important – Prompt Notice
The clients with whom the lawyer had “significant client contact” must promptly receive notice that the lawyer is leaving. While the lawyer and firm may notify clients independently of each other, they should try to agree to a joint notification. If the departing lawyer notifies clients of a pending move, the lawyer must provide contemporaneous notice to the firm.
Telling Them What?
That the lawyer is leaving and that clients can choose to go with the lawyer, remain with the firm, or choose new counsel altogether. The key lines here:
- “Clients are not property. Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm. Subject to conflicts of interest considerations, clients decide who will represent them going forward when a lawyer changes firm affiliation.”
Also, no matter who informs the clients that the lawyer is leaving, no lawyer may make “false or misleading statements to clients.”
Firms should adopt policies & procedures aimed at “orderly transitions.” Among other things, an “orderly transition” includes:
- ensuring that clients continue to receive competent and diligent representation up until the lawyer’s departure. This necessarily means that the departing lawyer “have access to adequate firm resources needed to competently represent the client during any interim period.”
- coordination between the lawyer and firm to ensure that the file is “organized and up to date” upon the lawyer’s departure.
- protecting “client information from inadvertent disclosure or misuse.” In particular, “the duty of confidentiality requires that departing attorneys return and/or delete all confidential information in their possession, unless the client is transferring with the departing attorneys.”
- following the lawyer’s departure, monitoring the lawyer’s email and voice mail to ensure prompt responses to client matters.
Again, this post is but an outline. I tried to highlight the portions of the opinion that respond to the inquires I typically receive from lawyers and firms when a lawyer departs.
As mentioned in my prior post, breaking up is hard to do. But whatever you do while breaking up, do no harm to clients.