December 09, 2014 Top Story

Law Firms Must Monitor Emails Sent to Departed Lawyers

Duty to protect clients' interests necessitates firms' review of emails

Daniel Elms

Ethical rules impose obligations on both lawyers and law firms when a lawyer decides to leave the firm. These obligations, according to a recent Philadelphia Bar Association Professional Guidance Committee Advisory Opinion, extend to monitoring the lawyer’s electronic mail account and reviewing email in that account after the lawyer’s departure.

Principal Duty to Protect Client Interests

The Advisory Opinion arose from the departure of a lawyer from his firm and the lawyer’s subsequent request that his former firm reject email sent to his prior email address. The firm instead replied to emails with a message that the lawyer is no longer with the firm. The firm also reviewed the account and forwarded emails to the lawyer that related to matters the lawyer retained after his departure. The lawyer’s position, however, was that his prior firm should return emails to the sender without reviewing them and with a message that the email account has been closed.

The Advisory Opinion noted that the Pennsylvania and Model Rules of Professional Conduct do not address the subject of email after a lawyer departs a firm. The Professional Guidance Committee instead looked to existing rules related to a lawyer’s departure and applied them to the handling of email. Specifically, the Opinion noted that the lawyer and law firm have a “principal . . . duty to protect the interests of clients in their legal matters during the period of transition.”

Obligations Related to Lawyer Departure Include Reviewing Email

A firm has several specific obligations to protect the interests of clients during a lawyer’s transition. The Advisory Committee noted that the Pennsylvania Bar Association and Professional Guidance Committee previously relied on American Bar Association Formal Opinion 99-414 in stating that a firm is obligated to (1) keep clients informed of the lawyer’s impending departure under Rule 1.4(b); (2) make clear that clients may continue with the lawyer, the firm, or another lawyer; (3) assure that active matters continue to be managed with competence and diligence under Rules 1.1 and 1.3 by other lawyers in the firm; and, (4) upon the firm’s withdrawal, take reasonable steps to protect the client’s interest under Rule 1.16(d).

These general principles not only permit, but obligate, the firm to review and reply to email sent to the departed lawyer’s account. The Advisory Opinion found the firm’s practice of opening and reviewing the email permissible due to the firm’s ethical obligations. The Opinion, moreover, found that those obligations precluded the firm from complying with the lawyer’s request that the email simply be returned to the sender. Nonetheless, according to the Opinion, the firm should include the departed attorney’s current contact information in reply messages and, under Rule 4.4(b), must forward email that is clearly meant for the departing attorney.

Other jurisdictions have not specifically addressed the ethics of opening a former partner’s email. Many jurisdictions, however, have relied on the ABA Formal Opinion that served as a foundation for the Advisory’s Committee’s conclusion. For instance, state bar ethics committees in AlaskaKentuckyOregon, and Virginia have looked to ABA Formal Opinion 99-414 and the specific steps it suggests when lawyers change firms.

Plan for Potential Departures

“The continuous themes that the Committee emphasized are that this issue has to be taken from the perspective of the client and that the client’s interests are the most important,” observes Oran F. Whiting, Chicago, IL, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. From this perspective, according to Whiting, the firm “has to read the departed partner’s email because it could contain information that affects the client.”

Having a process in place for issues that may arise in connection with a lawyer’s potential departure would help prevent disputes such as that before the Committee from arising, according to Whiting. “It’s not too arduous a task or responsibility to contemplate, in either a retention letter or partnership agreement, the possibility that a lawyer may leave a firm to outline the steps to be followed if and when an attorney should leave during the defense or prosecution of the case,” Whiting observes.

Jonathan B. Stepanian is an associate editor for Litigation News.

Keywords: ethics, Model Rules, email

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