New ABA ethics opinion emphasizes ethical responsibilities of departing lawyers and law firms

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Ethics

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Lawyers who leave their firms and their departing firms have ethical obligations toward the clients of the departing lawyers. These include the duty of communication and the responsibility to enact reasonable notification periods for lawyers who are leaving their firms.

Furthermore, law firms cannot restrict departing lawyers’ access to files or support staff to the extent necessary to provide diligent representation to clients.

Duty to Communicate

Lawyers have an obligation to inform their clients of their impending move under Model Rule 1.4 of the ABA Model Rules of Professional Conduct, which generally requires lawyers to timely communicate relevant information to clients.

Formal Opinion 489, released Wednesday by the ABA Standing Committee on Ethics and Professional Responsibility, counsels that the departing lawyer and the firm may communicate that information unilaterally, but that the firm and the departing lawyer should work toward a “joint communication” to all clients with whom the departing lawyer has had significant contact. This gives the client time to consider whether to stay with the departing lawyer, remain with the firm or choose another attorney.

The opinion notes that a few states, such as Florida and Virginia, have specific rules on what lawyers can do regarding informing and soliciting clients.

“Under the Model Rules, departing lawyers need not wait to inform clients of the fact of their impending departure, provided that the firm is informed contemporaneously,” according to the opinion.

Clients Control Choice of Lawyer

The opinion emphasizes that clients determine who will represent them, not anyone else. “Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm,” the opinion states.

This means that when a departing lawyer was a client’s primary attorney, firms should not assign new lawyers and try to displace the departing lawyer “absent client direction or exigent circumstances arising from a lawyer’s immediate departure from the firm and imminent deadlines needing to be addressed for the client.”

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Obligations of Law Firm Management

The opinion emphasizes that law firm management has obligations under Model Rule 5.1 to establish “reasonable procedures and policies to assure the ethical transition of client matters when lawyers elect to change firms.”

For example, the law firm and departing lawyer “must coordinate” to ensure that “all electronic and paper records” of the client are up to date and organized for transferal to the new firm or new counsel, pursuant to the client’s choice.

These policies must be consistent with the duty of confidentiality under Model Rule 1.6(c). This means that law firms must take steps to avoid inadvertent disclosure. It also means that “departing attorneys return and/or delete all client confidential information in their possession, unless the client is transferring with the departing attorney.”

No Unreasonable Notice Periods

Law firms have an ethical obligation not to impose notification requirements on departing lawyers that would thwart client choice of counsel or prohibit departing lawyers from providing diligent representation to clients during transition periods, according to the opinion.

The opinion cites Model Rule 5.6(a), which provides that lawyers not make partnership or employment agreements that restrict a lawyer’s ability to practice after the lawyer leaves the firm.

The opinion provides that law firms’ notification requirements on departing lawyers “cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.”

The opinion emphasizes that if these notification requirements negatively impact a client’s choice of counsel “If they would affect a client’s choice of counsel or serve as a financial disincentive to a competitive departure, the notification period may violate Rule 5.6.”

Access to Files

The opinion also prohibits law firms from denying a departing lawyer access to “adequate firm resources” during the transition period. This means that the firm cannot force the departing lawyer to work remotely or at home. Furthermore, the departing lawyer must have the ability to receive “necessary assistance from support staff.”

Law firms also “cannot prohibit or restrict access to email, voicemail, files and electronic court-filing systems where such systems are necessary” for the departing lawyer to “represent clients competently and diligently during the notice period.”



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