The story of the 2 Florida lawyers who were suspended for misconduct associated with leaving a law firm prompts me to share some observations.

Note: this post includes a sneak peak of a future blog about my pet turtle disappearing when I was 10.

Last week, the Florida Supreme Court approved a referee’s recommendations to suspend two attorneys for misconduct associated with leaving a law firm.  The referee’s recommendations followed stipulations in which the lawyers and the Florida Bar agreed that the lawyers had violated the rules by failing to give advance notice of their departure to the firm, failing to work with the firm on a joint notification to clients, taking digital copies of confidential data with them, disabling a feature that would’ve allowed the firm to send a mass email to clients, and unilaterally contacting clients after opening their own firm. 

The ABA Journal has coverage here.  The referee’s recommendations are here and here.

I’ve previously blogged on the duties owed by the lawyer and a law firm when the lawyer departs the firm.  The first was Leaving a Law Firm: Breaking Up is Hard to Do (October 2019).  The second was Leaving a Law Firm: Update (December 2019). The update came on the heels of the release of ABA Formal Advisory Opinion 489: Obligations Related to Notice When Lawyers Change Firms.

I post today for two reasons. 

1. To share observations that are a product of having received several inquiries on this exact topic, as well as having screened at least one disciplinary complaint that followed a breakup that cannot be described as amicable.[1]
2. To wonder aloud whether Vermont should adopt a rule like Florida’s.

As I indicated, as bar counsel, I’ve been involved in several situations in which a lawyer departs a law firm. In a few, I’ve attempted to resolve/mediate disagreements between the firm and the departing lawyer(s). I understand that it’s a situation in which emotions can run high. Still, I’m always surprised that (1) the departing lawyer(s) often believe it’s okay to contact clients before informing the firm of their departure; and (2) the firm often believes it’s okay to ban the departing lawyer(s) from notifying clients of their departure.

I don’t believe that either is correct.  As the ABA opinion indicates,

• Lawyers have the right to leave a firm;
• Firms have the right to require advance notice of departure;
• Clients have the right to choose their own counsel; and,
• “Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.”

This is why I support the ABA’s guidance that lawyers and firms should work on crafting a joint letter to the departing lawyer’s clients.

To lawyers who want to notify clients before (or without) informing the firm, answer me this: why?

In my experience, the answer is most often “I want the clients to come with me.”  Trust me, I understand the answer.  Really, I get it.

But it’s not the answer that is problematic.  It’s the thought process. It’s not too different than the child/spouse who decides to do something without telling their parents/spouse. And, usually, that’s a decision born of a realization that “I don’t think that telling them will work out too well for me.” 

I’d argue that such a thought process is not consistent with “professional responsibility.”

To lawyers who learn that a lawyer is leaving and want to ban the lawyer from contacting clients, answer me this: why?

In my experience, the answer is most often “I want the clients to stay here.”  Trust me, I understand the answer. Really, I get it.

But it’s not the answer that is problematic.  It’s the thought process. It’s not too different from the spouse who asks a friend “please don’t ask my spouse if we’ll go with you.” And, usually, that’s a question born of a realization that the spouse might say “yes, we’d love to.”[4]

I’d argue that such a thought process is not consistent with professional responsibility.

Simply, lawyers and firms don’t get to choose who represents the client. The client gets to choose who represents the client.   

Whatever feelings the departure engenders between departing lawyer and firm, professional responsibility includes putting those feelings aside and complying with the obligation to communicate to the client sufficient information to allow the client to make informed decisions about the representation. 

Work together, make the transition orderly.

How?

A few years ago, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion, which tracks the opinion ABA opinion, provides helpful guidance.  Here’s my summary:

1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure. [5]
2. Preferably, notice should come from both the firm and the departing lawyer.
3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Finally, while I’ve been involved with several, I’ve never felt we needed to adopt a rule that governs departures and dissolutions.  I’ve considered the duties of diligence and communication, along with common professional sense and courtesy, to cover it.

But maybe it’d be easier – for all involved – if we had a rule like Florida’s. I don’t know.  If you’re interested in weighing in, Florida’s rule is below.

As always, let’s be careful out there.

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[1] To be precise, I’m sharing two observations.  They do not exhaust the issues that arise when a lawyer leaves a law firm.  Other issues are addressed in the links I’ve included, and might also be the subject of future posts. For instance, in today’s post, I am NOT addressing a common issue: what can the departing lawyer take with them? On that, I’ll leave it at this: if, as a departing lawyer, you’re secretly making copies or surreptitiously taking material, think about the words “secretly” and “surreptitiously.”

[4] Not to mention, do you think clients aren’t going to ask “hey, what happened to the lawyer who was working on my matter?” I don’t think that “the lawyer who was working on your case ran away and we don’t know where they went” is going to cut it. Although, when I was around 10, we came home from vacation and my pet turtle was gone. I asked my parents if they knew what had happened to it.  I confess: their answer worked until I was well into my 30s and The First Brother finally asked, “you don’t really still believe that your turtle CLIMBED OUT OF ITS TANK THAT WAS IN THE BASEMENT and ran away, do you?” 

[5] This is mainly for departing lawyers. As the Ohio advisory opinion indicates, the notification doesn’t necessarily have to go to every single client of the firm. The ABA Opinion advises notifying clients with whom the departing lawyer had “significant client contact.”  The comment to Florida’s rule suggests that “clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact.” 

Related Posts

• Leaving a Law Firm: Breaking Up is Hard to Do
• Leaving a Law Firm: Update
• Leaving your law firm? What NOT to do
• Need a refresher on leaving a law firm? A Florida jury awarded $2.3 million to a firm after an associate improperly departed with clients

Resources

• Formal Opinion 2020-06: Lawyer Departing a Law Firm, Ohio Board of Professional Conduct (September 2020)
• Formal Advisory Opinion 489: Obligations Related to Notice When Lawyers Change Firms, American Bar Association Standing Committee on Professional Responsibility and Legal (December 2019)

The Florida Rule

RULES REGULATING THE FLORIDA BAR

Rule 4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND DISSOLUTION OF LAW FIRMS

(a) Contractual Relationship Between Law Firm and Clients. The contract for legal services creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including the ownership of the files maintained by the lawyer or law firm. Nothing in these rules creates or defines those relationships.

(b) Client’s Right to Counsel of Choice. Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do affects the exercise of that right.

(c) Contact With Clients.

(1) Lawyers Leaving Law Firms. Absent a specific agreement otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful.

(2) Dissolution of Law Firm. Absent a specific agreement otherwise, a lawyer involved in the dissolution of a law firm may not unilaterally contact clients of the law firm unless, after bona fide negotiations, authorized members of the law firm have been unable to agree on a method to provide notice to clients.

(d) Form for Contact With Clients.

(1) Lawyers Leaving Law Firms. When a joint response has not been successfully negotiated, unilateral contact by individual members or the law firm must give notice to clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms.

(2) Dissolution of Law Firms. When a law firm is being dissolved and no procedure for contacting clients has been agreed to, unilateral contact by members of the law firm must give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.

 (3) Liability for Fees and Costs. In all instances, notice to the client required under this rule must provide information concerning potential liability for fees for legal services previously rendered, costs expended, and how any deposits for fees or costs will be handled. In addition, if appropriate, notice must be given that reasonable charges may be imposed to provide a copy of any file to a successor lawyer.

(e) Nonresponsive Clients.

(1) Lawyers Leaving Law Firms. In the event a client fails to advise the lawyers and law firm of the client’s intention in regard to who is to provide future legal services when a lawyer is leaving the firm, the client remains a client of the firm until the client advises otherwise.

(2) Dissolution of Law Firms. In the event a client fails to advise the lawyers of the client’s intention in regard to who is to provide future legal services when a law firm is dissolving, the client remains a client of the lawyer who primarily provided the prior legal services on behalf of the firm until the client advises otherwise.

Comment

The current rule of law regarding ownership of client files is discussed in Donahue v. Vaughn, 721 So. 2d 356 (Fla. 5th DCA 1998), Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), and Woodson v. Durocher, 588 So. 2d 644 (Fla. 5th DCA 1991). A lawyer leaving a law firm should consult with the law firm regarding disposition of client files. Ownership of client files may be the subject of contract law and of the employment, partnership, or shareholder agreement between the lawyer and the law firm.

While clients have the right to choose counsel, that choice may implicate obligations such as a requirement to pay for legal services previously rendered and costs expended in connection with the representation as well as a reasonable fee for copying the client’s file.

Whether individual members have any individual legal obligations to a client is a matter of contract law, tort law, or court rules that is outside the scope of rules governing lawyer conduct. Generally, individual lawyers have these obligations only if provided for in the contract for representation. Nothing in this rule or in the contract for representation may alter the ethical obligations that individual lawyers have to clients as provided elsewhere in these rules.

In most instances a lawyer leaving a law firm and the law firm should engage in bona fide, good faith negotiations and craft a joint communication providing adequate information to the client so that the client may make a fully informed decision concerning future representation.

In those instances in which bona fide negotiations are unsuccessful, unilateral communication may be made by the departing lawyer or the law firm. In those circumstances, great care should be taken to meet the obligation of adequate communication and for this reason the specific requirements of subdivisions (d)(1) and (3) are provided.

Lawyers and firms should engage in bona fide, good faith negotiations within a reasonable period of time following their knowledge of either the anticipated change in firm composition or, if the anticipated change is unknown, within a reasonable period of time after the change in firm composition. The actual notification to clients should also occur within a reasonable period of time. What is reasonable will depend on the circumstances, including the nature of the matters in which the lawyer represented the clients and whether the affected clients have deadlines that need to be met within a short period of time.

For purposes of this rule, clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact. Clients need not be notified of the departure of a lawyer with whom the client has had no direct contact. Clients whose files are closed need not be notified unless the former client contacts the firm, at which point the firm should notify the former client of the departure of any lawyer who performed significant legal services for that former client and had direct contact with that former client.

Although contact by telephone is not prohibited under this rule, proof of compliance with the requirements of this rule may be difficult unless the notification is in writing.

In order to comply with the requirements of this rule, both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.

If neither the departing lawyer nor the law firm intends to continue representation of the affected clients, they may either agree on a joint letter providing that information to those clients, or may separately notify the affected clients after bona fide, good faith negotiations have failed. Any obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.

Most law firms have some written instrument creating the law firm and specifying procedures to be employed upon dissolution of the firm. However, when such an instrument does not exist or does not adequately provide for procedures in the event of dissolution, the provisions of this rule are provided so that dissolution of the law firm does not disproportionately affect client rights.

As in instances of a lawyer departing a law firm, lawyers involved in the dissolution of law firms have a continuing obligation to provide adequate information to a client so that the client may make informed decisions concerning future representation.

The Florida Bar has sample forms for notice to clients and sample partnership and other contracts that are available to members. The forms may be accessed on the bar’s website, http://www.floridabar.org, or by calling The Florida Bar headquarters in Tallahassee.

Lawyers involved in either a change in law firm composition or law firm dissolution may have duties to notify the court if the representation is in litigation. If the remaining law firm will continue the representation of the client, no notification of the change in firm composition to the court may be required, but such a notification may be advisable. If the departing lawyer will take over representation of the client, a motion for substitution of counsel or a motion by the firm to withdraw from the representation may be appropriate. If the departing lawyer and the law firm have made the appropriate request for the client to select either the departing lawyer or the law firm to continue the representation, but the client has not yet responded, the law firm should consider notifying the court of the change in firm composition, although under ordinary circumstances, absent an agreement to the contrary, the firm will continue the representation in the interim. If the departing lawyer and the law firm have agreed regarding who will continue handling the client’s matters then, absent disagreement by the client, the agreement normally will determine whether the departing lawyer or the law firm will continue the representation. Adopted effective January 1, 2006 (916 So.2d 655); amended November 9, 2017, effective February 1, 2018 (234 So. 3d 577); amended January 4, 2019, effective March 5, 2019 (267 So.3d 891); amended March 3, 2022, effective May 2, 2022 (SC20-1467).