By David Majchrzak and Edward McIntyre
19.4.5 American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 489
Issue:
What ethical obligations regarding notice arise when lawyers change firms?
Analysis:
Just as lawyers may switch law firms, clients may switch lawyers or law firms. Rule of Professional Conduct 5.6 makes non-competition clauses in partnership, member, shareholder, or employment agreements permissible. Such agreements would impermissibly restrict a client’s choice of counsel, and chill a lawyer’s right to change firms.
Lawyers and law firm managers must transition client matters when lawyers notify a firm they intend to move to a new firm. Any notice requirements should be the minimum period necessary for clients to decide who will represent them, and firms to secure firm property in the departing lawyer’s possession, assemble files, and adjust staffing in circumstances where the firm will continue on matters previously handled by the departing attorney. These notice requirements may not 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.
Firms also may not restrict a lawyer’s ability to represent a client competently during notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. Rather, the representation should continue as normally as possible. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.