Leaving your law firm? Avoid these ethical issues
Like most professions, lawyers change firms regularly. But because lawyers owe ethical duties to their clients, there’s much more to leaving than just moving out personal belongings. Lawyers’ ethical obligations include always placing the clients’ interests above those of the lawyer or firm. Depending on employment status with the firm, a lawyer may owe fiduciary duties to the firm and its members. Of course, these duties must also be considered when planning a separation. Thinking about these issues after the fact may leave a lawyer and the firm he departed exposed, if something goes wrong.
What should an ethical lawyer say to their firm?
Obviously, it’s a good idea for a lawyer to tell their firm that they’re leaving. The more notice, the better, as you’ll need time to determine how best to handle the departure and client communication.
As the departing lawyer, make sure that you do nothing that would give your firm or partners an argument that you breached any duties owed to the firm. Take the high road, be transparent, and document each decision as you move through the departure. Formal Advisory Opinion No. 97-3 reminds us that any conduct which involves “dishonesty, fraud, deceit, or willful misrepresentation” is a violation of Bar Rule 8.4. Clients also need enough time to make informed decisions about future legal representation. The decision for the clients is whether to stay with you, or remain with the old firm.
What can an ethical lawyer say to clients?
A departing lawyer has an affirmative duty to inform clients and take steps to protect their interests. Likewise, a firm can’t restrict a lawyer from contacting clients and offering to continue their legal representation.FAO 97-3 contains guidelines, and points to several Rules covering relevant conduct. Basically, if the lawyer has “either had significant contact or actively represented” a client, the lawyer may contact them.
The best plan is to send a joint letter signed by the lawyer and the firm. Tell the client about the departure timeframe and describe how file transfers will be handled. Have clients return the letter designating their choice of lawyer with a simple check box and signature. If the firm and lawyer can’t agree on the letter, the lawyer can send their own.
But try to keep issues with your firm separate from how you and the firm handle the client letters. If you let personal or business disputes get in the way of your clients’ best interests, you could end up as the respondent in a Bar grievance matter!
What can an ethical lawyer take with them?
Get an agreement in writing—even if it’s just an email—with your firm/partners about how electronic personal and client information, including old emails and contact lists, will be transferred. Also make sure that there’s a written agreement in place covering how fees on existing matters will be divided.
It’s a bad idea to delete any electronic information, even if you believe that the firm doesn’t have the right to keep it. If the information was transmitted or stored on a firm computer or network, the information will likely be classified as firm property anyway. Review employee handbooks, employment contracts, confidentiality agreements, and partnership agreements, to see what materials may be proprietary or whether something is considered private firm property. And remember, you don’t have a reasonable expectation of privacy in the firm’s computers or network!
Ethical lawyers always ask, “is this in the clients’ best interests?”
This is the best way to address any questions or issues that may arise during the departure and transition process. If the answer is an affirmative “yes,” then you will likely steer clear of trouble. Don’t let disputes with the firm or general turmoil get in the way of giving clients the best possible transition support and legal representation. Your clients will thank you for it.
For related information, see our Turning on the Lights article about planning for a new law firm.