There are quite a few ethics opinions discussing the obligations of the firm and lawyer in this scenario, so check for one in your jurisdiction, or call your bar’s practice management program for advice. In Arizona, advisory (nonbinding, but persuasive) Ethics Opinion 10-02 clearly lays out the requirements for both the departing lawyer and the firm. For everyone’s sake, regardless of hurt feelings, economic fears or other strong emotions, we encourage, even implore, all concerned to make this process as seamless and professional as possible.
Case Management Considerations––Enter Technology
What must be done? The clients need to be informed; the departing lawyer will need current and past case information for client notification purposes, as well as for future conflict checking purposes; funds being maintained in the firm’s IOLTA account need to be reconciled, transferred or refunded; notices of withdrawal or substitution of counsel may need to be filed; or files may need to be forwarded or transferred. And that short litany may not be complete, depending on the nature of the case(s).
Thankfully, for firms effectively using practice management software, these first steps are easy.
First, generate a list of all active cases being handled by the departing lawyer; this list should be augmented with information about funds held in trust for the client, or other property of the client in the possession of the law firm. Your legal tech will help you sort this information to make it easier to navigate and prioritize. To prioritize client contact or to arrange coverage, think about sorting based on closest upcoming deadlines or court appearances. If you do not use a practice management platform in your firm, this process will require a manual search of all open cases at this point––and will likely require a search of all matters handled during the departing lawyers’ tenure to provide the information the departing lawyer will need to conduct conflict checks in the future. Using Outlook (or other email system) contacts may be helpful but will likely require manual sorting. If this hasn’t convinced you to use good practice management software, it should.
A universally agreed-upon best practice is for the departing lawyer and the firm to send a joint letter to each affected client. This tends to be a trouble spot (please see our reference to hurt feelings and economic pressure above). We write now in the hope that firm leadership will take the high road, and thereby encourage the departing lawyer to do the same. The letter should, at a minimum, contain basic information (that the lawyer is departing) and lay out the choices facing the client in an emotionally neutral way; this is not the place for a guilt trip. Your bar’s practice management program may have a sample letter on which to build (the State Bar of Arizona’s Practice 2.0 practice management advice program offers such a letter, for example). Not sure what exactly to say or how to say it or disagreeing about wording? Call your practice management advisor for guidance.
In the unfortunate event that the firm and the lawyer cannot collaborate professionally on this letter, both the firm and the lawyer may send unilateral letters. It is important for the firm to not obstruct the departing lawyer from fulfilling their ethical duty to keep the client informed. Sadly, we frequently see firms immediately locking out the departing lawyer from the case management system. If the firm understands the options, they may provide case information or lists by altering the departing lawyer’s access by managing their permissions––for example, providing them read-only access to the cases on which they are listed as involved parties–– this doesn’t have to be a point of contention.
Assembling and Transferring the Complete Case File
Remember, the case file belongs to the client, which includes work product. Again, using technology effectively should mean that the case file and all related information is stored in one central place. For some firms that are paperless and do not use a practice management platform, pieces of the file may be maintained in different systems. Those various pieces, stored in a way that seems haphazard, need to be assembled in a single location to make the efficient transfer of the file possible. A firm may wish to utilize a document management system to collect all parts of the file, or at a minimum a file storage system (think Dropbox, Box, etc.––of course, only the business version, not the free version) to collect all relevant records in one place.
E-discovery software may also be a mechanism by which these separately located items may be collected. Rather than conduct a manual search and find process, e-discovery tools are built to do just that, so depending on the number of records that must be reviewed, this may be a good investment. In addition to File Explorer, you may need to search Outlook/email in- and outboxes, accounting records, and any other programs you may have used in any individual case, but that may not be integrated with a practice management platform. Using rules in Outlook, or searching by “sent to,” “from” or “subject” may be helpful. Keep in mind that correspondence and communication records are also part of the client file, as is work product.
Depending on the timing of the departure of the lawyer, and urgency of the client’s matter, if the client has funds in your firm’s client trust account, you may need to do an off-cycle trust account reconciliation so that you may either transfer client’s funds or offer a refund to those clients who also choose to depart. At the risk of being repetitious, if you are effectively using technology, this shouldn’t be daunting. We assume for purposes of this discussion that you are already doing the universally required monthly three-way reconciliation of your client trust account (if not, well, you have bigger problems we and our fellow columnists have addressed in previous columns). But asking a client to wait up to a month to get their funds transferred to their new lawyer’s trust account may not be reasonable, depending on the circumstances.
We’ve previously discussed the fact that all platforms claiming to handle trust accounting do not create all the records required for a monthly three-way reconciliation. Hopefully, you’ve taken heed and chosen a platform that produces the required records. So, conduct that off-cycle trust account reconciliation, and then handle any required funds transfers. Remember that most states’ rules specify the way funds may be disbursed from your client trust account.
As mentioned above, filing notices of withdrawal or substitution of counsel may be needed. Depending on the requirements of your state, you may need to give notice to the bar, the lawyer regulation system or individuals/agencies other than the clients. Technology is your friend there, too, as the use of templates and documents automation will make this process less painful––maybe not emotionally, but in terms of the procedural steps.
The firm and the lawyer will need to arrange for information from calendar appointments to be efficiently transferred. Email platforms contain built-in mechanisms for sorting. Hopefully your firm has used a logical naming convention––it not, it’s never too late to adopt one. If you’ve utilized the internal categories tagging function in your email platform, you will be able to sort that way. If not, sorting by “to,” “from” or “subject” will be necessary. Again, the more efficiencies you build in up front, the easier and less resource-intensive this process will be. So, yes, we are suggesting best practices by looking at the consequences of failing to implement them up front; but there is never a bad time to implement best practices. If you haven’t done so already, tomorrow is a new day and a new opportunity to improve your processes through technology.
Most of all, please remember that while a law practice may be a business, law is a learned profession––and that professionalism, courtesy and integrity will help make this process less painful. So will efficiently using technology.