Ethics in Brief: Duties Owed to a Client When a Lawyer Is Departing
By: David Majchrzak
Every year, it seems to happen shortly after the holiday season concludes. After bonuses have been paid and firms have made their annual distributions to partners and shareholders, lawyers start to move to new firms. Whereas movement within the profession is common and becoming even more so, lawyers have responsibilities within that process.
As a preliminary matter, conflicts need to be cleared. A lawyer cannot move to a firm where ethically precluded from doing so. Yes, that lawyer’s client at the firm they are departing can effectively stand in the way of that lawyer transferring to a firm representing another party in the same matter by refusing to give informed written consent.
Another common point of contention can be compensation the departing lawyer will be owed for contingency matters that have not yet resolved. But often the largest issue surrounds how and when to communicate the move to clients who that lawyer has served.
A number of ethics opinions make clear that the departure of a lawyer who has substantially worked on matter is a significant development that clients should be made aware of. The primary reasons for this are twofold. First, the client gets to control their choice of counsel, as well as what counsel they would like to disengage from. That is, the clients, not the departing lawyer and the law firm, get to decide who will continue to assist them.
Second, even if the client would have a clear choice, whether it be to remain at the current firm or to follow the departing lawyer, either scenario constitutes a situation that the client should be apprised of since there could be a meaningful change in how the matter is staffed or otherwise supported.
To be clear though, not every instance of a lawyer leaving a firm requires a communication to a client. The most common reason is where the departing lawyer has provided minimal services to the client. Others could be where the lawyer has worked under the supervision of a lead attorney or on a team of lawyers such that the departing lawyer’s presence in the matter was all but invisible to the client. In such situations, it is relatively common that the departing lawyer has contributed a relatively small percentage to the quantity and quality of work and may have had so little communications with the client that, if asked, the client would not even identify them as one of the lawyers working on the matter.
That said, the mere fact that the departing lawyer is more junior does not, by itself, mean that no disclosure to the client is appropriate. Nor does it matter whether the client would be likely to follow the lawyer to their new firm. If there is a question whether the departure would matter to the client, it should be disclosed.
The general consensus of ethics opinions is that, whereas not required, it is a great idea for such communications to come from both the firm and the departing lawyer. Pragmatic dialogues, however, may result in different determinations, particularly in instances where it is relatively predictable that a longtime institutional client will remain with the firm or that a client with a special relationship with the departing lawyer will almost certainly follow them. But where the decision is less obvious, a communication from both firm and lawyer may provide a more comfortable circumstance for the client to respond to. Regardless of who sends the communication, it should generally include the three options of remaining with the firm, going with the departing lawyer, or selecting a new counsel. That may vary in situations where either the firm or the departing lawyer is unable to continue the representation. Such may be the case if, for example, the firm has nobody left who is qualified to handle the matter. Or the departing lawyer may be unable to take on the matter due to limitations within their new firm.
In some circumstances, the departing lawyer, the law firm, or both may elect to send separate letters to the client. The fact that the client may receive a communication from another does not change the requirement that the client still be advised of the options for continued representation. And the departing lawyer should be sure to observe obligations that they owe to the firm.
Particularly partnership level lawyers may have fiduciary obligations to the firm, such as notice requirements before advising clients about their impending move. And most lawyers may not openly solicit firm clients to follow them beyond stating the clients have that option. Accordingly, the departing lawyer should be careful neither to urge a client to leave the firm nor to disparage the firm they are departing from. Instead, communications should be objective and present clear options so the client is choosing. The goal is to put the client’s interests first. And that may be best advanced by not putting them in an awkward middle of a messy separation.
Regardless of which choice the client makes, the lawyer and firm should cooperate to make the transition as seamless as possible. If the client is remaining at the firm, that means the departing lawyer should reasonably communicate information necessary to continue to advance the representation. In case where the client is following the departing lawyer, the firm should ensure that client papers and property, including any remaining trust account balances be timely forwarded as the client requests.
Though these situations create new opportunities, there are a variety of obligations that accompany them. Those must be addressed by both the firm and the departing lawyer.
