California State Bar Advises on How to Ethically Depart Law Firm

California lawyers departing from their firms have ethical and contractual obligations to uphold, but the most important thing to remember is to place their clients’ interests first, the State Bar of California recently advised.

“Lawyer mobility is a reality in today’s legal marketplace,” the bar’s professional responsibility committee said. There are “competing interests between the departing lawyer and the departed law firm” but they have to prioritize their ethical obligations to clients above these interests, it said.

These obligations center around the fundamental concepts that the client has the right to the counsel of his or her choice and lawyers must protect their clients’ interests during all phases of any transition, the committee’s opinion said.

They include properly notifying relevant clients of the departure, protecting client confidences, addressing conflicts of interests with clients, ensuring that clients continue to have competent representation, and avoiding reasonably foreseeable prejudice to the rights of clients during any changes in the representation, the committee said.

Its opinion was prompted by a lawyer leaving her law firm and transitioning her practice to a new firm who asked the panel about her ethical obligations relating to the departure.

Leaving a firm is a “significant development” that triggers the duty to communicate, it said. A departing lawyer and law firm have to inform clients “as soon as reasonably practical” to allow them to decide on future representation, according to the group’s opinion.

Any client who, when asked who their attorney is, names the departing attorney should be notified, it said.

There’s no one answer for when a lawyer can tell a client about an impending departure, the committee said. They should bear in mind that they may have fiduciary duties toward other firm attorneys and that certain behavior could be seen as unfair competition, it said.

But “prohibiting lawyers who have already given notice to the law firm of their departure from properly soliciting clients and competing for clients on equal footing as the law firm” could be seen as undermining client choice, it said.

And firms can’t forbid a departing lawyer from contacting the client or delaying the contact to try and get the client first, the opinion said. This conflicts with the firm’s obligation to prioritize the clients’ interests, it said.

During a departure, lawyers have to remember their obligations to protect client confidences, the opinion said.

There’s “often a tension between the duty of confidentiality and other ethical duties” faced by departing lawyers and law firms during the departure process, “but nevertheless should be managed by every lawyer involved in the transition to protect and preserve confidential client information,” it said.

The opinion is State Bar of Calif. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2020-201.