The American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued guidance concerning the ethical duties held by firms and lawyers when a lawyer decides to leave the firm.
First and foremost, under Model Rule 1.4, lawyers have an ethical duty to inform their clients that they intend to change firms. Where the attorney had “significant contact” with the client, the lawyer and the firm should agree on a letter to be sent to the client which provides such notice and gives the client the option to go with the lawyer, stay with the firm or take their matter to a new lawyer. In the event that the lawyer and the firm cannot agree on the form of a letter, the firm cannot prevent the lawyer from sending his or her own letter to a client soliciting the client to move with them. As the ABA guidance states, “Clients are not property . . . Subject to conflicts of interest considerations, clients decide who will represent them going forward when a lawyer changes firm affiliation.”
Firms may not impose unreasonable restrictions on departing lawyers, such as rigid notification requirements that have the effect of either restricting the client’s choice of counsel or serving as a financial disincentive to the lawyer to leave. Such restrictions may violate Model Rule 5.6(a), which effectively prohibits noncompete clauses. Restrictions that may be considered reasonable are those that serve to ensure an orderly transition by allowing for updating, organizing and transition of files or staffing changes.
In addition, firms may not deny the departing lawyer access to firm resources during the transition period. For example, the firm cannot force the lawyer to work at home, or restrict the lawyer’s access to email, support staff or first records. Such restrictions would prevent the lawyer from representing clients diligently and competently during the transition period.