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ABA Advises on Ethical Obligations When Attorneys Switch Firms

Dec. 4, 2019, 3:01 PM

Attorneys are more mobile in their careers, and a new American Bar Association advisory opinion addresses obligations when a lawyer switches firms.

A departing lawyer and the firm should work together to meet ethical responsibilities to protect client interests during the transition, the Dec. 4 opinion by the ABA’s Standing Committee on Ethics and Professional Responsibility said.

The opinion will help inform lawyers and their firms, particularly in Big Law, where it’s become more common over the last decade for attorneys to jump from one firm to another, and to bring their books of business with them.

Ethical obligations include providing the firm with enough notice of the intended departure to notify clients; working together to ensure an “orderly and timely” transition of client files; and returning firm property, it said.

Ideally, the firm will have written policies on departures, the opinion said.

Ethical obligations include representing a client “diligently,” which means informing the client promptly of a job change, it said. The ABA Model Rules of Professional Conduct say departing lawyers don’t have to wait to inform clients, so long as the the firm is notified at the same time, it said.

Some states, like Florida, address client notification in their model rules , the opinion said. In Florida, an attorney and firm have to try to negotiate a joint client communication before notifying clients. If that fails, the attorney can “unilaterally” reach out to clients.

But clients aren’t “property,” the opinion said, so firms and lawyers on the move can’t divide them up. Clients “decide who will represent them going forward when a lawyer changes firm affiliation,” it said.

The firm has a duty under Rule 5.1 to make sure there’s an “orderly transition” of client matters. This includes assessing whether the firm can handle a clients’ work. If the departing lawyer was the only one with the requisite expertise, the firm can’t continue representation, the opinion said.

An “orderly transition” also includes making sure client files are up to date and that a departing lawyer respects the duty of confidentiality for clients left behind. This means returning or deleting all confidential information in the lawyer’s possession, the opinion said. A departing lawyer can keep client names and contact information, however, for purposes of conflict checks at the new firm.

During a transition, a law firm also has responsibilities. Although it’s O.K. for firms to have employment agreements requiring attorneys to provide reasonable notice of a job change, Rule 5.6(a) says the agreements can’t be used to “coerce or punish a lawyer for electing to leave the firm,” the opinion said.

Firms also can’t refuse departing lawyers access to “adequate firm resources needed to competently represent the client” during the transition period, it said. These can include assistance of support staff and access to email and files.

The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 489, 12/4/19.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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