January 31, 2020

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Ethics

New ABA Ethics Opinion on Obligations When Lawyers Make Lateral Moves

By Keith R. Fisher

“Clients are not property.”  This and other uncontroversial observations – such as that lawyers have a right to leave law firms and clients have the right to choose their lawyers – form the predicate for the recently issued ABA Formal Opinion 489, discussing ethical obligations when lawyers leave firms.   This opinion updates older ABA guidance, including Formal Opinion 99-414, “Ethical Obligations When a Lawyer Changes Firms,” and Formal Opinion 09-455, “Disclosure of Conflicts Information When Lawyers Move Between Law Firms.”

The key precepts of guidance from those earlier opinions remain unchanged.  The overarching consideration is protection of client interests during a lawyer’s transition.  Both the law firm and the departing lawyer must ensure that departure from the firm does not have a material adverse effect on the interests of the clients with active matters upon which the lawyer is currently working.  The goal is to ensure orderly transition of client matters when a lawyer notify the firm of intent to move to a new firm.  The departing lawyer must disclose his or her client information to the new firm where necessary and appropriate to perform a conflict of interest analysis well before the departing lawyer officially joins the new firm.  

While firms may require some period of advance notice of an intended departure, the duration of that period should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm (if the firm will continue to represent the client), and secure firm property in the departing lawyer’s possession.  Such notification requirements cannot, however, be so inflexible that they restrict or interfere with a client’s choice of who will represent it or when to transition a matter. 

Firms may not ethically invoke non-competition clauses or other financial disincentives (other than provisions regarding retirement benefits) embodied in partnership, member, shareholder, or employment agreements to undermine these principles.  See Model Rule 5.6(a).  Firms also cannot restrict a lawyer’s ability to represent a client competently during the period following notice of departure but preceding actual departure by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. 

Please note:  The Business Law Section plans to present an “In the Know” webinar with more detailed coverage of this subject sometime during the spring of 2020.

Keith Fisher

Principal Consultent and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.