If a lawyer is changing firms, how should the lawyer and the old firm handle notification to existing clients of the lawyer’s departure?
The issue of notification to clients represented by the departing lawyer arises both when departing lawyers move to new firms or open their own practices. Departing lawyers and their firms must recognize that clients do not “belong” to either of them. Clients have the right to choose to have either the departing lawyer or the old firm represent their interests. Thus, both the firm and the departing lawyers have the right and the obligation to notify clients of the departure so that clients can decide whether the old firm, the departing lawyer, or some other attorney will handle the case. In Formal Opinion #99-414 the ABA committee advised that joint notification by the departing lawyer and the firm was the preferred approach. Recognizing that joint notice was infeasible if the departure was not amicable, the committee concluded that departing lawyers could properly provide either in-person or written notice to their current clients—those clients for whom the lawyer was responsible or for whom the lawyer played a principal role in the firm’s delivery of legal services—but not clients with whom the lawyer had little or no personal involvement. The committee advised that the initial notice of the lawyer’s anticipated departure to clients should conform to the following requirements:
- The notice should be limited to current clients.
- The departing lawyer should not ask the client to end its relationship with the old firm, but the notice could state the departing lawyer’s availability to provide services to the client.
- The notice must make clear that the client has the ultimate right to decide who will handle the client’s matter.
- The departing lawyer must not disparage the former firm.
The committee stated that the departing lawyer could provide the client with additional information, including a statement of whether the lawyer will be able to continue to represent the client at her new firm. A departing lawyer may also ethically respond to requests for information from clients to assist them in making informed decisions about the handling of their cases. In Meehan v. Shaughness, 535 N.E.2d 1255 (Mass. 1989), the court found that the withdrawing partners breached their fiduciary duties by seeking and obtaining prior to their departure secret consents from clients to retain their services after they left the firm. The court remanded for a determination of whether there was a causal connection between the departing lawyers’ breach of fiduciary duty and damage to the partnership. It imposed the burden of proving lack of causation on the departing lawyers because of their breach of duty. See also In re Smith, 843 P.2d 449 (Or. 1992) (en banc) (imposing a four-month suspension on an associate who, among other misconduct, secretly met with 31 clients of the firm and had them sign individual retainer agreements during the two and one-half months prior to his departure).
For more information, Nathan M. Crystal
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This blog is the Fourth Part of a series of blogs dealing with lateral movements of lawyers. You can read the others here:
Confidentiality issues in lateral movement and firm’s breakup
Lateral movement: When should departing lawyers inform their firms of their plans to leave?