Ethical Considerations When Switching Firms

Although you’ve recently started your legal career, you may already be thinking of switching employers. While some lawyers do stay with one firm for their entire career, job changes are common and are a reality in today’s legal market. In addition to navigating a new commute, new coworkers, and possibly a new practice area, you must make sure to satisfy your ethical obligations when you leave one firm for another. The California State Bar’s standing Committee on Professional Responsibility and Conduct addressed this scenario in Formal Opinion 2020-201, and the rules apply equally whether you are an associate, partner, or some other role when you leave. The Opinion (available here), covers ethical duties applicable to a departing lawyer and to that lawyer’s firm. This column focuses on the key considerations for you, the departing lawyer.

The two most important overarching principles in this scenario are protection of the client’s best interest, and the client’s right to the counsel of its choice. Compensation structures, origination credits, and competition for revenue all create incentives that can cloud judgment when a lawyer departs. But the ethical rules are unequivocal: the client’s interests come first. Clients have the right to the counsel of their choice, and as the California Supreme Court made clear, “client matters belong to the clients, not the law firms.” Heller Ehrman v. Davis Wright Tremaine LLP, 4 Cal. 4th 467, 479 (2018).

Under California Rules of Professional Conduct (“Rule”) 1.4(a)(3), your departure is a “significant development” that must be communicated to affected clients, and both you and your current firm share this obligation. But not every client needs to hear from you. The obligation applies to clients whose matters you are responsible for, for whom you play a principal role, and any client you reasonably believe may wish to follow you. The test is client-centered: would the client name you as one of their principal attorneys? If so, they need to be told about your departure. When in doubt, err on the side of informing the client.

Notice should be timely, fair, and reasonable, and it should enable the client to make an informed decision about future representation. Some firms may tell you not to contact clients until after you’ve left, but that position has been widely rejected as contrary to the client’s right to make an informed choice. That said, you generally should tell your firm before you tell your clients, unless delay would prejudice the client. Be wary of firm policies that use the delay to lobby clients while keeping you silent (this could violate  the firm’s ethical obligations).

Joint notice (made by you and the firm you are leaving) is preferred and generally considered the best way to protect clients’ interests. If joint notice can’t be agreed on, unilateral notice is ethically permissible. If your current firm fails to notify the client, you must do so. Opinion 2020-201 also sets forth the minimum elements of any required notice: when and where you are going, the client’s right to stay with the firm, go with you, or choose someone else entirely, and how the matter will be handled during the transition. You of course should not make false or misleading comments about the firm or any other aspect of the communication.

Notifying clients of your departure is not necessarily an impermissible solicitation under Rule 7.3. You may solicit clients with whom you have a “prior professional relationship” to come with you, provided your communications are not false or misleading. But you should never solicit a client who has made it known that they do not want to be solicited, and neither you nor your firm should exert undue pressure on the client’s decision, such as imposing conditions on the release of the client’s file. Once a client has made their choice, neither you nor your firm should pressure them to change their mind.

If a client wants to follow you, you must ensure you have the skill, support, and resources to handle the representation competently under Rule 1.1. And throughout the entire process, you have a duty under Cal. Bus. & Prof. Code 6068(e) and Rule 1.6(a) to maintain the confidentiality of client information. The obligation can be particularly implicated and challenging when running conflicts checks with a potential new firm.

Both you and the firm you are leaving have a duty to cooperate in transitioning client matters under Rule 1.16(d). Either you, or the firm, or both are terminating your relationship with clients during this process, and thus must take steps to avoid reasonably foreseeable prejudice to each client’s rights. 

A comprehensive conflict check is a necessary element of any attorney transition. As set forth in Opinion 2020-201, this check should reveal any conflicts that you have with clients of your new firm, along with any conflicts your existing clients may have with the new firm. You and the new firm can then determine whether screening protocols are needed. 

Leaving one firm for another should trigger a detailed analysis of numerous ethical rules. For California attorneys, Formal Opinion 2020-201 provides a comprehensive roadmap for navigating these challenges.