The client comes first. The client is not chattel. And it’s the client’s choice.
Those are three lessons that can be drawn from ABA Formal Opinion 489, issued December 4, 2019, and bearing the title, “Obligations Related to Notice When Lawyers Change Firms.” In that Opinion, the ABA Standing Committee on Ethics and Professional Responsibility acknowledged that a lawyer has the right to leave his or her firm and practice in a different setting, and quoted its 2009 Opinion where it recognized that, in fact, “[m] any lawyers change law firm associations during their careers.” Formal Op. 489 p. 1 (quoting ABA Op. 09-455) (internal quotation marks omitted). With that acknowledgment, the Committee issued its Opinion and addressed “the ethical obligations of both a departing lawyer and their former firm in in protecting client interests during the lawyer’s transition.” Id. At the outset of its Opinion, the Committee identified a few overarching ethical obligations owed the client:
- The departing lawyer should give the firm sufficient notice of the intended departure so the lawyer and the firm can notify affected clients;
- The departing lawyer and the firm should work together to effect an orderly and timely transition of files to the departing lawyer if a client wants the matter to be handled by the departing lawyer; and
- Similarly, the departing lawyer and the firm must cooperate to organize and update files of clients who are staying with the firm.
The Committee encouraged firms to have “written policies to provide guidance to lawyers about the procedures the firm anticipates following when a lawyer leaves the firm.” Id. Given the realities of private practice, and the fact that lawyers can and do change practice settings, Opinion 489 contains important information, and any lawyer who practices in a private firm of any size should read it. With that background in mind, let’s turn to the highlights of that Opinion and the three lessons I drew from it.
The Client Comes First.
That is always the case and remains the case when a lawyer decides to leave a firm—and the Rules of Professional Responsibility continue to apply when a lawyer is transitioning from a firm. Model Rule 1.3 requires a lawyer to “act with reasonable diligence and promptness in representing a client,” while Rule 3.2 in th same way mandates that a lawyer “shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Thus, a lawyer’s decision to leave a firm should be implemented in a way that does not harm a client.
Plus, as the Committee notes, “lawyers have an obligation to communicate relevant information to clients in a timely manner, according to Rule 1.4″1 Op. at 2. Clearly, a lawyer’s decision to change law firms is a relevant matter that must be communicated to the client. The Committee quoted an earlier 1999 Opinion, where it had said: “informing the client of the lawyer’s departure in a timely manner is critical to allowing the client to decide who will represent him.” Id at 2 (footnote omitted) (internal quotation marks omitted) (quoting ABA Op. 99-414). The Committee noted a D.C. Bar Opinion that concluded that Rule 1.4 obligates a lawyer to notify clients “sufficiently in advance of the departure to give the client adequate opportunity to consider whether it wants to continue representation by the departing lawyer and, if not, to make other arrangements.” Id. n. 4 (internal quotation marks omitted) (quoting D.C. Bar Op. 273 (1997)).
Under the Model Rules, once the departing lawyer tells the firm he or she is leaving, both the lawyer and the firm may unilaterally contact affected clients. Id. at 2, 3. Ideally, “the firm and departing lawyer should attempt to agree on a joint communication to firm clients with whom the departing lawyer has had significant contact, giving the clients the option of remaining with the firm, going with the departing attorney, or choosing another attorney.” Id at 2 (footnote omitted). The Committee also cited jurisdictions that have a specific Rule governing the communications a departing lawyer and the firm may have with clients upon the lawyer’s departure. See, e.g., Florida Rule of Professional Conduct 4-5.8(c) (1) (providing that, absent a specific agreement to the contrary, a departing lawyer may not unilaterally contact clients unless the lawyer has first contacted the firm and unsuccessfully tried to arrange for a joint communication).
Which clients should receive these communications? Those clients with whom the departing lawyer has had “significant client contact.” If a client would identify “the departing lawyer, by name, as one of the attorneys representing the client,’ the lawyer has had significant contact with that client. Id. at 3 (footnote omitted). On the other hand, if the departing lawyer had once prepared a research memorandum at the request of a colleague in the firm, but had never met or spoken with the client, the lawyer did not have significant contact with that client. Id.
If a client decides to be represented by the departing lawyer, the firm is obligated to assist with an orderly transition. “After the firm knows that a lawyer intends to depart but such lawyer has not yet, in fact, left the firm, the lawyer must have access to adequate firm resources needed to competently represent the client during any interim period.” Id. at 6. For example, the firm cannot force the lawyer to work from home, and the firm cannot deny or restrict the lawyer’s access to support staff, e-mail, voicemail, research tools, or other electronic systems. The lawyer “cannot be precluded from using associates or other lawyers, previously assigned to a client matter or otherwise normally available to lawyers at the firm to represent firm clients competently and diligently during the pre-departure period.” Id. at 6-7. In other words, the client should not be prejudiced by the lawyer’s pending departure, and the lawyer’s representation of that client should not be negatively affected. Once the lawyer has left the firm, the firm should implement automatic email and voicemail responses, providing notice of the lawyer’s departure and providing alternative contacts at the firm. Id. at 7.
If a client decides to stay with the firm, and not be represented by the departing lawyer, the lawyer must take steps to protect the client’s interests. “This duty includes the departing lawyer updating files and lawyers at the firm who take over the representation, when possible.” Id. at 4. It could require the departing lawyer to coordinate with his or her former colleagues, even after the departure, if necessary to protect the client’s interests. Again, the client should not be disadvantaged by the lawyer’s departure from the firm. No matter who ultimately represents the clients, “[t]he firm and departing lawyer must coordinate to assure that all electronic and paper records for client matters are organized and up to date so that the files may be transferred to the new firm or to new counsel at the existing firm, depending upon the clients’ choices.” Id. at 4. In short, the client comes first.
The Client is not Chattel.
It is something easy to lose sight of this basic notion. As the departing lawyer and the firm begin squabbling and positioning themselves in a struggle for business, they may starting viewing clients as chattels that might be the subject of swaps or deals. That is wrong. “Clients are not property. Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm,” Id. at 3. This is an important overarching theme and leads directly to the third lesson to be drawn.
It’s the Client’s Choice
Because the client is not a piece of voiceless inanimate property, and because the client comes first, “clients decide who will represent them going forward when a lawyer changes firm affiliation.” Id. (footnote omitted). After the client has been informed of the departure, but before the client has announced a decision about future representation or otherwise given direction to the lawyer and the firm, the status quo should generally be maintained. “Where the departing lawyer has principal or material responsibility in
a matter, firms should not assign new lawyers to a client’s matter, pre-departure, displacing 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.’ Id. at 3-4. This is why prompt notice to the client is important, so the client can make an intelligent and informed decision, and not have the decision foisted on it by circumstances or the passage of time.
As the Committee also points out, other actions by the firm could restrict or negatively affect a client’s right to choose counsel. “Model Rule 5.6 prohibits restraints on a client’s choice of counsel,” and thus prohibits agreements that restrict a lawyer’s right to practice after a relation-ship with a firm ends. Id. at 5.2 Because law firms have an obligation to make sure that client matters transition smoothly, they often have agreements that require lawyers to give advance notice before leaving the firm, thus creating “a reasonable notification period, necessary to assure that files are organized or updated, and staffing is adjusted to meet client needs.” Id. But “these notification periods 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.” Id. Cases decided under Rule 5.6 support “the conclusion that lawyers cannot be held to a fixed notice period and required to work at a firm through the termination of that period. Financial disincentives to a competitive departure have routinely been struck down by the courts and criticized in ethics opinions.” Id. Consequently, where advance notice provisions “would affect a client’s choice of counsel or serve as a financial disincentive to a competitive departure, the notification period may violate 5.6.” Id. As the Committee explained:
“Although ‘reasonable’ notice provisions may be justified to ensure clients are protected when firm lawyers depart, what ‘reasonable’ in any is given circumstances can turn on whether it is truly the client’s interest that is being protected or simply a thinly disguised restriction on the right to practice in violation of [Rule] 5.6(a).” Moreover, to the extent that a firm routinely waives the full notice requirement, enforcement in a particular instance is problematic when used to penalize a lawyer who leaves to compete with the firm.
Id at 6 (footnotes omitted).
Opinion 489 provides useful guidance to lawyers who are thinking about leaving a law firm, as well as lawyers faced with a departing colleague. In the concluding section of that Opinion, at page 7, the Committee makes several observations, including the following:
- “Lawyers have the right to leave a firm and practice at another firm;”
- “The ethics rules do not allow non-competition clauses in partnership or employment agreements;” and
- “Lawyers and law firm management have ethical obligation to assure the orderly transition of client matters when lawyers notify a firm they attend to move to a new firm.’
In its conclusion, the Committee goes on to summarize additional points, based on those observations. As stated earlier, lawyers are encouraged to read the entire Opinion. Those three general observations, however, capture the basic thrust of the Opinion, as do the three lessons I drew from that Opinion. The client comes first. The client is not chattel. And it’s the client’s choice.
1Maryland has adopted those Rules, codifying them as Md. Rules 19301.3, 19-303.2, and 19-301.4.
2Maryland’s version of that Model Rule is Md. Rule 19-305.6.’
This article originally appeared in The Bar Association of Montgomery County Newsletter.