August 2016

Parting Need Not be “Such Sweet Sorrow”1
Ethical Considerations When Moving On

By Edward McIntyre

Attorney at Law

After a couple of years, you’ve learned all you think your current firm can teach. Or you can’t live another day in the same space with that egotistical, narcissistic partner who dumps a ton of work on you at 5:30 almost every evening and then bolts — not to return until 11 the next morning demanding: “Where is it?!?”

You have a few clients of your own — not Fortune 500, but clients nonetheless. Time to move on. Your own practice? Another firm? Either way, somewhere else. Decision made.

In spite of everything else crowding your plate with your first big move since law school, you must not overlook the ethical implications of your transition. What are some ethical considerations? Let’s discuss a couple.

Clients. Whose are they? Can you tell them you’re on your way? Before you go? Do you have to tell your firm first? Which ones can you tell?

As an employee, you owe your current firm a fiduciary duty of “undivided loyalty.” Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 509. That suggests you tell your current employer you intend to leave before informing your clients. Ideally, you and your firm will work out an agreed statement that will go to your clients — clients for whom you’ve been responsible, not necessarily every client of the firm — informing them about your plans; telling them they’re free to remain with the firm or go with you. None of us owns our clients; they choose us.

Rule of Professional Conduct 3-500 (Communication) requires us to inform clients about significant developments in the representation. It would be hard to argue that moving to another firm or to your own practice — and a client’s right to go with you or stay — isn’t significant! So you not only have the right to inform your clients about your move, but you have an ethical duty — as does the firm — to tell them. What is paramount is the client’s absolute right to choose its lawyer, a right it cannot exercise unless it knows you’ll be leaving and where you’ll be going. See ABA Formal Opinion No. 99-414.

But suppose the ideal doesn’t happen. What then?

If, for example, you reasonably fear your firm would take preemptive action — lock you out of the office; prevent access to documents; shut you out of the computer system — all of which would inhibit serving clients during the transition, the firm would, of course, seriously risk breaching its ethical obligations to its clients. But could such reasonable fears justify telling your clients about your pending departure before informing your firm? Perhaps.

What about the firm’s other clients? Can you slip in on a Saturday evening, download the firm‘s database and send out direct solicitation letters? I hope the question answers itself. Your duty to inform clients about your move runs only to current clients, i.e., clients whose active matters you’re currently responsible or for whom you play a principal role in the firm’s delivery of legal services.              

What about after you’re gone? At that point you’re free, consistent with Rule 1-400 (Advertising and Solicitation), to solicit any of your former firm’s clients.

Your Joint Duty and that of the Firm to All Clients. Both you and the firm are terminating your respective relationship with clients. You, with the ones that stay with the firm; the firm, with those who elect to follow you.

Rule 3-700 (Termination of Employment) mandates that lawyers, including law firms, take reasonable steps to avoid reasonably foreseeable prejudice to the rights of clients when terminating an engagement. That means the firm has to cooperate with your clients and you by seamlessly and timely transferring the files of clients who elect to go; and you have to cooperate with the firm, and your successors on those client matters, for clients who choose to stay. If you’re counsel of record, make sure you execute and file timely substitutions of attorney — and seek court approval where required (Rule 3-700(A)(1)).

Sage advice recently given to a departing lawyer, anxious to move on: “You have a career of 30 or more years ahead of you. Don’t do anything during the few weeks or month of your transition that will blemish that record.”

1 Romeo And Juliet, Act 2, scene 2.

**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.**