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.