Thoughts on the minimum amount of notice a departing lawyer must provide to a law firm.

Michael 2 Comments

Last month, a lawyer contacted me with an inquiry.

  • “Mike, I’m switching firms. How much notice do I have to give to my firm?” 

I’ve blogged many times on the legal ethics issues that arise when a lawyer leaves a law firm.  The posts have focused on the requirement that the departing lawyer and the firm notify clients that their options are to follow the departing lawyer, stay with the firm, or choose new counsel altogether.[1]  The posts have also addressed questions such as who provides the notice, to whom, and what must the notice include.

For reasons that elude me, I’ve never blogged about the question that the lawyer asked last month. So, this afternoon, I’m using my response to the lawyer to address the issue, as well as to share a reminder about the inquiry process.

The question “how much notice must I give my firm?” isn’t uncommon. For the past several years, I’ve directed lawyers to ABA Formal Opinion 489. [2]  In short, on the minimum notice issue, the opinion concluded that such requirements “cannot be fixed or pre-determined in every instance.”

Be careful how much you read into that phrase.

Indeed, the ABA opinion’s synopsis states:

  • “Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.”

In other words, while I know that most of you would prefer a hard & fast answer, I can’t give you one.  As far as notice goes, what’s reasonable will depend on the circumstances.

Indeed, earlier this year, the Professional Ethics Committee of the State Bar of Texas issued Opinion 699.  The opinion presents four questions, including:

  • “Through an employment agreement between a law firm and its lawyers, may the law firm impose a minimum departure notice period for lawyers who wish to depart the law firm?”

More specifically, the Texas opinion analyzes whether a law firm may enforce an employment agreement against a “lawyer [who] has given 30 days’ notice of departure and [who] disagrees with the employment agreement’s 90-day minimum departure notice provision.”

Knowing my readers, I’ll cut to the chase.  The opinion concludes that:

  • “Although a law firm may require a reasonable minimum departure notice, such requirements must not be set in stone.”

It went on:

  • “The specific circumstances will dictate whether a minimum departure notice period is reasonable, but a period of two to four weeks is ordinarily defensible.”[3]

Now, let’s return to last month’s inquiry.

When I shared the Texas opinion with the lawyer, the lawyer said something like “Great, thanks. So, I can tell my firm that you said that 2 weeks is enough.”

Umm, no.  You cannot tell your firm that I said that!

First, as I blogged here last week, I don’t give “yes” or “no” answers. Nor do I pre-approve or prohibit conduct.

In other words, by directing the lawyer to the Texas opinion, I was not suggesting that 2 to 4 weeks’ notice will necessarily be deemed reasonable. That is, I don’t know whether Disciplinary Counsel, a PRB hearing panel, or the Vermont Supreme Court – the ultimate arbiter – would conclude that a “period of two to four weeks is generally defensible.”[4]

Indeed, from a risk management perspective, it strikes me as more sensible to focus on two other aspects of the Texas opinion: (1) its statement that “specific circumstances will dictate whether a minimum departure notice period is reasonable;” and, (2) its use of the word “excessive” to describe notice requirements that are not reasonable.

Again, I understand that lawyers aren’t thrilled when I respond to inquiries with shades of gray. However, on this specific question, what’s reasonable will depend on the circumstances.  Moreover, it strikes me that the impact on affected clients is necessarily relevant to the analysis.  And, what’s reasonable given the status of one client’s matter might not be reasonable given the status of another client’s matter.

Similarly, I understand that law firms want to avoid abrupt departures and I agree that firms “have a legitimate basis for requiring reasonable notice of a lawyer’s planned departure [in order] to ensure that client matters transition smoothly and the clients’ interests are protected.”[5]  

Still, lawyers are allowed to change jobs and “[a]n agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.”[6] In other words, when it comes to minimum notice requirements, what might be reasonable for a firm to expect from one departing lawyer, might be excessive – or unreasonable – if imposed upon a different departing lawyer.

As always, let’s be careful out there.

[1] This post discusses “notice” and links to two others that do the same.

[2] American Bar Association, Standing Committee on Ethics & Professional Responsibility, Formal Opinion 489, Obligations Related to Notice When Lawyers Change Firms (December 2019).  I was surprised (but pleased) to learn that the opinion remains publicly available for free.  Many of the ABA’s formal opinions eventually are removed from the public domain.  However, there remains a live link to FO 489 in this article in which the ABA Journal announced the opinion’s release.

[3] In reaching its conclusion, the Texas opinion cites two sources. The first is Rule 5.06 of the Texas Rules of Professional Conduct.  The rule is identical to V.R.Pr.C. 5.6.  Both prohibit employment agreements that restrict a lawyer’s right to practice following the termination of the employment agreement.  Per the Texas opinion:

  • “Enforcement of a minimum departure notice requirement beyond a reasonable period serves only to prevent the departing lawyer from competing and unduly interferes with the rights of clients to join that lawyer at a new practice if they decide to do so.”

[4] I’ve not done exhaustive research on this topic. Still, as far as I recall, the Texas opinion is the first advisory opinion I’ve read that concludes that a specific length of notice as “ordinarily defensible.”  As opposed to court decisions issued after parties have litigated the reasonableness of the notice that a departing lawyer provided.

[5] Texas Opinion 699, p. 2.

[6] V.R.Pr.C. 5.6, Cmt. [1].

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