YourABA October 2011 Masthead

Ethics of switching firms

When you’re wooed by another law firm, and you’re seriously considering a switch, can you just pick up and leave? According to Lawrence J. Fox in his Section of Litigation podcast, “The Ethics of Switching Firms: Tips to Know Before You Go,” if you’re adverse to the new firm in a present matter, there are several ethical matters to mind before the switch can happen.

“Your client has to find out,” says Fox—a partner at Drinker, Biddle & Reath LLP and past chair of the ABA Standing Committee on Ethics and Professional Responsibility—citing Model Rule 1.4 Communications. “And if you can’t tell your client, then you cannot pursue the [new employment] matter until the representation that arises here is completed.”

“You cannot be flirting with the law firm on the other side in a way that would cause the client to have misgivings about your continued representation,” Fox says.

“You cannot be flirting with the law firm on the other side in a way that would cause the client to have misgivings about your continued representation,” Fox explains.

When must a lawyer meet the disclosure obligation? If an opposing law firm expresses interest in the lawyer, and she reciprocates interest, her disclosure obligation kicks in as soon as she “accepts the first date.” But it is also important to note that if the lawyer does not respond back to the opposing firm, there is no obligation at all.

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If the client gives consent for his lawyer to talk with the other side, and the lawyer accepts an employment offer and leaves for the opposing law firm, Fox notes further rules that become relevant—rules that vary according to jurisdiction.

“About 20 jurisdictions have rules that say, ‘If you’re going to work for the other side, that’s perfectly OK, so long as you are screened at your new practice setting,’” says Fox. “The conflict of interest that you are bringing will not be imputed to everyone else, the lawyer is free to move and the client is simply informed that the lawyer has been screened.”

Other jurisdictions only allow lawyers to leave and be screened if they had a very small role in the case at hand. “If you worked on a memo or did some document review, perhaps you are free to move; but if you’re a senior associate and know all the information on the case, then you can’t move.”

“And finally—half the jurisdictions prohibit you from moving, say that all the information you have is imputed to the law firm, unless the client consents,” explains Fox, noting his preference for the scenario. “So—the client gets to decide whether your new law firm gets disqualified, after you’ve made the switch.”

The Ethics of Switching Firms: Tips to Know Before You Go” is part of the Section of Litigation Sound Advice library, a collection of podcasts designed to help members become better lawyers. Other programs cover pretrial, trial/arbitration, young lawyer, professional development, federal practice and judicial topics.

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