By Edward McIntyre
Sara knocked gingerly on Macbeth’s open door.
“Macbeth, do you have a few minutes to talk about ethics issues when a lawyer leaves a firm?”
“Good grief, Sara — ”
“Oh, no! Not me! I love it here. My friend, Kelly, has some questions.” Another young woman appeared in the doorway.
“You gave me quite a start. By all means, please come in. Make yourselves comfortable. I assume you did a conflict check, Sara?”
“I did. Both firms. Where Kelly is now. And the one where she’s going. No conflicts. Not with the firms. Nor any of their lawyers.”
“Fine. Well, Kelly, you have our full attention.”
“I’m an associate at a smallish firm. I have the opportunity to move to a larger firm. More chance for growth. Broader practice. Diverse client base. Better mentoring. Also, I like the atmosphere.”
“Good for you. Fine, professional reasons to make a career change. Have you told your current firm yet about your intentions?”
“Not yet. I just accepted the new position last night. Then, I talked to Sara about doing it right. She said to talk to you.”
“Let’s talk about some key ethics principles for lawyers moving firms. Also some practical suggestions.” Kelly sat ready to take notes.
“First and foremost, the interests of the client are paramount. None of us ‘owns’— Macbeth used air quotes — a client.” Each client has freedom to choose whichever lawyer the client wants. A longstanding principle. We have to honor that choice above all. Including, obviously, above our own interests.”
“I can see that.”
“As a corollary, we have to do everything necessary to facilitate a client’s choice, once made.”
“Makes sense.”
“But, first, comes communication. Rule 1.4 requires a lawyer to communicate significant developments relating to the representation to clients. Certainly, a lawyer leaving a firm is a significant development to the lawyer’s client. That’s an obligation the individual lawyer has. As does the law firm.”
“Both? OK.”
“Ideally, you and the firm will agree on a joint statement to each affected client. Give each all the necessary information. Also, you’ll agree who the affected clients are. I say ideally. Sadly, that doesn’t happen very often. If it doesn’t, you must still inform your clients.”
“But whom do I inform?”
“Excellent question. Certainly, any client whose matter you’re responsible for. Also, any client where you play a principal role in the firm’s providing legal services. And any client you reasonably believe may wish to transfer with you to your new firm.”
“Even if I am not the ‘originator’ — Kelly’s turn to use air quotes — of the client?”
“‘Origination,’ as the term’s typically used, has nothing to do with informing clients about a lawyer’s leaving. Because the ‘originator’ remains, or the departing lawyer didn’t ‘originate’ the client, is no reason for the firm to try to prohibit the departing lawyer from giving either required or permitted information about leaving to a client.”
“One partner won’t like that.”
“Too bad. The test is client-centric. If the client were asked, Who is your lawyer? And identifies you — even if not exclusively —then you have the right and duty to tell the client your leaving and where you’re going.
“What else do I tell clients?”
“Where you’re going and when, of course. That you would like to continue to represent them at your new firm — if you would. Also, the client is free to remain at the firm and it will continue to serve the client’s needs — if that’s the case. The client is also free to choose another firm to represent it. You will cooperate, whatever the client chooses.”
“Anything else?”
“Because choice of a lawyer is so important for many people, the client is entitled to as much information as it needs to make an informed decision. Information, for example, about your new firm. I presume the client already knows about your current firm. Frankly, if your leaving means your current firm cannot well serve some clients, it has the obligation to tell them. Similarly, if your new firm cannot serve some clients in the same manner as your current firm, you have to tell it that.”
“Just the opposite.”
“Fine. If billing rates will be a significant factor for a client, that’s information a client may need to make an informed choice.” Kelly flipped to a new page.
“I’m afraid we’ve just scratched the surface. We have to talk about conflicts of interest at your new firm for clients that may wish to go with you.”
“Yes, the firm asked me for a list of clients I think may transfer.”
“Be careful of your confidentiality obligations. Section 6068 (e)(1) and rule 1.6. If you are counsel of record in ongoing litigation, you can likely provide that information without breaching your duty of confidentiality. But otherwise, be sure clients give you their informed consent to reveal to your new firm that you represent them, even for a conflict check.”
“Thank you. Had not thought about that. Most of my matters are active litigation. But I do counsel a few clients at the prelitigation or investigation stage. What about prohibited solicitation?”
“Another fine question. The obligation to communicate with client — Rule 1.4 — trumps the solicitation Rule — 7.3 — in this instance. At least for clients you are responsible for serving or whom you reasonably believe may come with you. You still can’t take the firm’s whole client list and solicit business.”
“I’d never — ”
“I know. But some have. Now let’s at least mention the transition. Once a client has chosen to stay or go with you, Rule 1.16 requires you or your firm, as the case may be, to take reasonable steps to avoid reasonably foreseeable prejudice to the client. And, as necessary, promptly to release all client materials and property and return any unearned fees. We may be a bit ahead of ourselves here, but file transfers will come up before you know it.”
“Should I start gathering? — ”
“No. Sorry to be so abrupt. The files are the clients’. They belong with the firm until the clients request that they be delivered to your new firm. Or stay where they are. I always counsel lawyers and firms to get the request in writing and make an inventory. But that’s not an ethics requirement. Just good practice management.” Kelly stared at her notes.
“Kelly, we’ve covered a lot. I sincerely hope you and your firm can agree on a joint departure protocol. It makes life so much easier. For clients. For the firm. For the lawyer. But if not, we’re here.”
“Thanks, Macbeth. Sara was right. I’m glad I talked to you.”
Edward McIntyre is a professional responsibility lawyer and co-editor of San Diego Lawyer.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.