Ethical Considerations when a Lawyer Departs a Firm

This article was originally published in Cleveland Metropolitan Bar Association’s July/August Bar Journal issue.

Dear EE: I will be departing my current law firm and making a lateral move to a new position. What ethical considerations should be on my radar? – The Leaving Lawyer

Dear Leaving Lawyer: Whether amicable or abrupt, a lawyer’s departure implicates a number of ethical considerations.

Common issues include the following:

Notifying Affected Clients – Who, How, What, and When

The departing lawyer and firm each have an ethical obligation to ensure affected clients are timely notified of the departure and informed of their options for ongoing representation. Notice should be provided to clients with whom the attorney has “significant personal contact” as determined from the client’s perspective — i.e., those clients who would identify the lawyer by name as someone representing them. See ABA Formal Op. 489; Oho Ethics Guide, Switching Firms.

Ohio’s Board of Professional Conduct (“Board”) strongly encourages departing lawyers and their firms to collaborate on a joint notice to affected clients, but separate notice is permissible. Ohio Adv. Op. 2020-06. But neither the attorney nor the firm has a right to prevent the other from contacting affected clients about the departure. ABA Formal Op. 489.

Whether sent jointly or separately, a notice should include: (1) who is leaving, when, and the status of the client’s matter; (2) the lawyer’s new contact information; (3) confirmation the client can stay with the lawyer, remain with another attorney at the firm, or obtain new counsel; (4) request the client indicate a choice of counsel and indicate that absent a response the client will remain with the firm until the client directs otherwise; and (5) address treatment of any advanced fees and incurred costs. Ohio Ethics Guide, Switching Firms; Ohio Adv. Op. 2020-06. Notices should not, however, encourage the client to sever ties with — or otherwise disparage — the lawyer or firm, or imply that the client is the “lawyer’s client” or the “firm’s client.”

The Board has recommended that a lawyer’s notice to affected clients be undertaken at the same time or after, but not before, the firm is informed of the lawyer’s impending departure.

Addressing Conflicts while Maintaining Client Confidentiality

Departing lawyers have a duty to detect and resolve conflicts of interest — whether direct or imputed — arising from the transition. Prof.Cond.R. 1.7, 1.8, 1.9, and 1.10. Of course, a departing lawyer cannot continue representing a client if the lawyer’s new position would result in a non-waivable conflict of interest.

But it is also important to remember that the duty to address conflicts related to a departure does not negate the lawyer’s duty of confidentiality to clients. Specifically, while a lawyer may reveal confidential information as reasonably necessary “to detect and resolve conflicts of interest arising from the lawyer’s change of employment” the lawyer may do so “only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” Prof.Cond.R. 1.6(b)(7). Thus, when checking conflicts with a new or prospective firm/employer, a lawyer should disclose no more than the identity of the client, a brief summary of the issues involved, and whether the matter is ongoing. But if disclosing even that information would compromise privilege or otherwise prejudice the client (e.g., when a corporate client is seeking advice on a corporate takeover that has not been publicly announced), client consent must first be obtained. Prof.Cond.R. 1.6, Comment 13.

If neither the firm nor the departing lawyer can continue to represent the client, both should assist the client in obtaining new counsel.

Handling of Active Matters During Transition: If the departing lawyer has primary responsibility for a matter, the firm should not assign new lawyers to the matter, pre-departure, absent client direction or exigent circumstances. See ABA Formal Op. 489. Similarly, if the lawyer remains at the firm for some time after giving notice, the lawyer should have access to firm resources necessary to represent the client during the transition.

Clients who ultimately choose to leave the firm with the departing lawyer are entitled to take their client file, along with any money advanced to the firm, less earned fees and incurred expenses — which should be reflected in a firm accounting provided to the client. Prof.Cond.R. 1.15(d) and 1.16. For clients who decide to remain with the firm, the departing lawyer has an obligation to minimize client disruption, including delivering to the client all papers and property to which the client is entitled, and reasonably cooperating with successor counsel. Prof.Cond.R. 1.16(d).

Being Cognizant of Other Issues Involving Tort and/or Agency Law

While beyond the scope of Ethics Encore, such considerations require analysis separate and apart from an attorney’s ethical obligations (for instance, issues implicated by use of firm resources to set up a new practice, misappropriation of trade secrets, use of non-public firm information to further personal interests, etc.). Also keep in mind that as a general matter, a lawyer’s right to utilize firm email accounts and access firm voicemail accounts end when the lawyer’s employment terminates.

We at Ethics Encore wish you the best of luck with any new career.