Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Ethical Departures: Obligations to Clients When Attorneys Change Firms

Years ago, attorney mobility referred to an attorney’s rise in the firm’s ranks from law clerk to associate, to junior partner, to equity partner.  Today attorney mobility refers to the ritual of attorneys changing firms on a regular basis to improve one’s financial and equity status.  When lawyers in today’s legal market decide to leave their current firms, this decision involves several ethical and professional considerations but the primary focus must always be on the client’s best interest.  Little formal guidance exists as to the proper way to handle this relatively common occurrence or how to resolve the competing interests of the departing attorney and the firm in a way that maximizes the client’s best interests.

How and When to Inform the Client

The law treats a lawyer departing his or her firm as a termination of the attorney client relationship and requires the departing attorney to “take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” (See California Rules of Professional Conduct [“CRPC”] 3-700.)  The duty to communicate with clients includes the duty to advise clients of changes in employment status that materially alter the client representation.  Clients should not be “kept in the dark” about the status of the firm and its attorneys.  CRPC 3-500.  Procedures should be in place to ensure all clients continue to receive competent representation when an attorney is changing firms. 

A departing attorney has an ethical obligation along with the existing firm to assure that clients are informed that the lawyer is leaving the firm.  The best practice is for the departing attorney and the responsible person from the existing firm to draft a joint letter that notifies the client of the attorney’s upcoming departure.  As the client has the ultimate decision to select counsel of his/her choice, information concerning the lawyer’s departure and where the lawyer is going should be relayed to the client to allow the client adequate time to make an informed decision.

Oftentimes, the departing attorney wants to take the client with him to the new firm.  Contacting firm clients with whom the departing attorney has no prior involvement in the client matter may be a potential violation of CRPC 1‑400 (B)(2)(b).  Notifying clients of the departing attorney’s new law firm before the attorney actually resigns from his existing firm should adhere to the following:

  • Limit the notice to client the departing attorney has represented;
  • Do not urge the client to sever his/her relationship with the existing firm but may advise the client of the departing attorney’s willingness and ability to continue representation;
  • Advise the client he/she  has the right to choose whether the old firm, the departing attorney or some other attorney will continue the representation until conclusion; and
  • Do not disparage the former firm. 

Partners leaving a law firm are permitted to solicit any client with whom they have a prior professional relationship.  [CRPC 1-400(C)].  And, in those instances where the attorney never worked on a client’s matter, solicitation of that client is typically prohibited.  Keep in mind that departing attorneys may expose themselves to potential tort liability when they persuade firm clients to leave the firm and change to the departing attorney’s new firm.  See Reeves v. Hanlon (2004) 33 Cal.App.4th 1140 regarding intentional interference with contractual relation and interference with prospective economic advantage.  See also Davis v. Nadrich (2009) 174 Cal.App.4th 1 regarding negligent interference with prospective economic advantage. 

What Goes With the Departing Attorney

As with medical or academic records, the client files are the property of the client.  When sending the suggested joint letter, the letter should advise the client that the client may have all of his files and property delivered to the client or to whomever the client wishes to further handle his/her matter.  Reeves v. Hanlon (2004) 33 Cal.App.4th 1140.  In those circumstances where a departing attorney wants to take client’s files from his/her existing firm, the departing attorney should consider whether those documents were created for the attorney’s general use or were they created specifically for the client’s representation.  And, in those circumstances where a departing attorney will no longer be involved in the client’s representation, the departing attorney may still retain copies of the client’s documents provided he/she maintains the confidential information is protected.

Obligations of the New Firm

The departing attorney will need to do a full conflict check as to those clients that are following the departing attorney.  Information necessary to complete a conflict check may be disclosed to the new firm as failure to do a detailed check can lead to disaster.  The conflict check should include not only those clients likely to come with the newly arriving attorney but also persons adverse to the newly arriving attorney’s clients. 

Conclusion

In today's age of mobility, an ounce of prevention is worth a pound of cure as a departing attorney wants to avoid future litigation with his/her former firm.  Be honest and maintain your ethical and fiduciary duties to your clients and your partners.

Marianne Barth is of counsel with Seltzer | Caplan | McMahon | Vitek. 

**No portion of this summary 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.**