Ethical guidance on switching law firms

Leaving your law firm for another position isn’t as easy as packing up and heading out the door. In a recent TYL article, “The Proper Way to Say Good-Bye and Hello,” author John A. Fischer of Dearie & Fischer LLC says there are certain obligations to mind – especially ethical ones.

Among considerations is Model Rule 1.4, which outlines a lawyer’s duty to inform clients of the impending departure.  Fischer advises lawyers to also check the rules and opinions relevant to this matter in their state, as obligations vary by jurisdiction. 

Attorneys should also be aware of Model Rule 1.6, which defines their obligations of confidentiality related to client representation.  “In some situations, the mere fact that a client sought your services could be highly confidential,” says Fischer. “You might be prohibited from revealing that representation to your target firm without the informed consent of the client.”

Fischer points out that Model Rule 1.6(b)(7) allows disclosure of client confidences to detect and resolve conflicts when switching employment. However, such disclosure is permitted only if it doesn’t compromise the attorney-client privilege or otherwise prejudice clients. “In some situations, informed consent may be your only option,” he warns.

Merely seeking a position with a different firm may raise a conflict with your current clients, according to the Comment to Model Rule 1.7. “For example, if your dream job is a local firm that aggressively pursues debtor class actions, and your current firm represents one or more players in the banking industry, then applying for the position may generate a conflict. At the very least, you may have a duty to obtain your client’s informed consent to continue in your current representation.”

The bottom line: “Switching firms requires a significant amount of planning, and you’ll need to spend time researching your state’s rules and thinking about how your new position may affect your current clients,” concludes Fischer.

For more ethical guidance on switching law firms, check out “Breaking Up Is Hard to Do: Ethics Concerns When Your Firm Splits Up or When a Lawyer Leaves for Another Firm,” from the January/February 2008 issue of GP Solo Magazine.

TYL is a publication of the Young Lawyers Division.

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