Nothing is permanent but change.
—Heraclitus
For all of its reliance on precedent and the past, the practice of law is primarily based on the management of changing circumstances. Clients don’t come to us when things are peaceful. They come to us to help them when their personal or professional worlds have been turned upside down by something new—a lawsuit, a criminal charge, a divorce in the offing. Even transactional lawyers are in the business of anticipating change and mitigating risk.
While managing changed circumstances for our clients, we also have to anticipate change within our own law offices. I am a case in point: I recently retired after serving 32 years in the district attorney’s office in Houston. The last 26 years were dedicated to performing general counsel duties for seven different district attorneys. The Houston Chronicle once referred to me as the office’s “bank of institutional memory,” a thread of continuity through these different administrations.
When I announced my retirement, then, the greatest concern to the current district attorney and her leadership team was the loss of that institutional memory. After my departure, would my replacement be able to solve the kinds of problems I’d become used to handling? Probably not, because my work was the product of decades of trial and error discovering the best ways to quickly and effectively resolve recurring controversies. In my absence, my successors would likely have to make many of the same mistakes I had made over the years.
Was this inevitable, however? And what could be done to mitigate the consequences of my departure?
To begin to answer this question, consider the concept of “transactive memory,” as described by Malcolm Gladwell in his book, The Bomber Mafia, a history of the early days of using aircraft in war:
The psychologist Daniel Wegner has this beautiful concept called transactive memory, which is the observation that we don’t just store information in our minds or in specific places. We also store memories and understanding in the minds of the people we love. You don’t need to remember your child’s emotional relationship to her teacher because you know your wife will; you don’t have to remember how to work the remote because you know your daughter will. That’s transactive memory. Little bits of ourselves reside in other people’s minds.
This concept floored me the first time I read it. Having been happily married for 31 years, I did not realize how much I had come to rely on the knowledge and memories stored in my wife’s brain and how much she had come to rely on me.
It then occurred to me that this idea wasn’t limited to the sharing of information in loving relationships—it was just as applicable to the collaborative process in so many things we do, including what goes on in a law office.
Consider: A client hires a firm to manage a matter for the client. The lawyers assigned then do what lawyers do—talk to people, research, strategize. And much of this work is documented in the client file, which is owned by the client.
But not all of what the lawyers know gets documented. Attorneys rarely capture everything they know in a client file. Instead, some of that information is stored exclusively in each lawyer’s mind, available as needed in the course of the representation but otherwise not fully known by either the client or any other lawyers working on the case, the deal, or whatever. Was the eyewitness wearing glasses at the deposition? Is the defendant left-handed? Did the plaintiff know how to use a socket wrench? These seemingly insignificant details may matter only in an as-yet-unforeseeable context.
But when lawyers leave their firms or other offices, they take such undocumented memories with them. Who does that information belong to?
In a broad sense, I believe those memories belong to the client. For that reason, a lawyer should have a qualified professional duty to disclose such details to the client upon request in the same manner and to the same degree the lawyer must turn over the former client’s work-product file.
Do the rules require this, though? Although ABA Model Rule 1.4(a)(4) compels a lawyer to “promptly comply with reasonable requests for information,” it is unclear whether that duty survives the termination of the attorney-client relationship.
Moreover, a rule premised on undocumented information a lawyer knows and may have withheld from a client would be difficult to enforce. It would also raise thorny questions of the lawyer’s entitlement to compensation for such debriefings, as well as establishing the line between work product developed in the course of the representation (which belongs to the client) and the more amorphous information that grows out of the lawyer’s skills and experience (which belongs to the lawyer).
The ABA Model Rules implicitly reflect that practical reality. For example, while ABA Model Rule 1.15(d) details the duty of a lawyer to turn over client property, which has been construed to include client files, it is silent on the duty to turn over intangible information:
Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
Similarly, ABA Model Rule 1.9, which discusses the duties owed to former clients, focuses on conflicts and confidentialities but is silent on the transition of client-owned information to successor lawyers.
To avoid the losses of both institutional and case-specific knowledge from a lawyer’s departure, a law office should develop procedures that anticipate and mitigate such transitions:
Don’t wait until the lawyer gives notice. Despite the efficiencies of delegating specific skill sets to particular individuals, delegation creates the transactive memory vulnerabilities discussed above. Avoid this by planning for succession, including having colleagues share their areas of expertise with each other through in-house training, mentoring, and internal primers on recurring issues. These transitions will happen at some point, so don’t put this off. You can either cross-train at leisure or debrief in haste—or not at all, if the departure is messy.
Support the departing lawyer’s transition. When a lawyer does give notice, remind the lawyer of the duty to fully document the work-product file on all pending matters being left behind and give the lawyer the time and support necessary to get this done, even if the transition isn’t on the best terms. Because the departing lawyer and the law office have a common duty to act in the best interests of the client, they must cooperate with each other and any successor attorney. For the same reason, a successor should have the opportunity to review the completed file and seek any necessary clarification from the person leaving.
Nail down post-departure terms of engagement. Before the departing lawyer’s final day, complete an agreement setting out how the lawyer will be consulted by a successor about a pending matter or the firm generally on issues involving institutional knowledge. This agreement should include reasonable compensation for the departed lawyer’s time. Cf. Tex. Comm. on Prof’l Ethics, Op. 627 (Apr. 2013) (authorizing departed lawyer to seek compensation for review of closed client files in anticipation of destruction). Far better to fairly resolve those issues before an emergency arises requiring assistance from the departed lawyer, who might then be more difficult to reach and less likely to agree to terms of compensation.
After I gave notice of my retirement, I spent the rest of my time briefing my office on the things I knew they didn’t know. For those matters I couldn’t get to, however, my agile and brilliant colleagues will have to fill in the gaps, as good lawyers do, embracing change and developing their own institutional memories over time.
And if they call me for help, I’m sure we can work something out.
