And the Final Rose Goes To...

Perhaps now more than ever in today’s ever-changing economy, issues relating to lawyers transitioning between firms are top of mind. A state bar committee on professional responsibility has issued an opinion on the “ethical obligations that arise when a lawyer departs from her law firm.” This opinion provides that, above all else, the primary directive is that the client’s interests must come first, the client has the right to the counsel of his or her choice, and lawyers must protect their clients’ interests during all phases of any transition.

In Formal Opinion No. 2020-201, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California recognizes that “[l]awyer mobility is a reality in today’s legal marketplace” and that the news is filled with stories of transitions that are “accompanied by tales of acrimony or contentiousness between the departing lawyer(s) and the former law firm.” The opinion thus identifies multiple ethical principles for lawyers and their firms to follow during any such transition.

The opinion first identifies a fundamental principle: clients are not the property of any law firm or lawyer. As a result, the guiding ethical principles governing any attorney departure are the protection of the client’s best interests and the client’s right to the counsel of his or her choice. And above all else, “the client’s interest always remains paramount.”

Duty to Communicate

The opinion discusses the mutual obligations of both the departing lawyer and the former law firm to “inform certain clients about [the lawyer’s] departure as soon as reasonably practical to allow clients to make an informed choice in counsel and to provide for a smooth transition to avoid prejudice to clients.” The general test of whether a client should be informed of a lawyer’s departure is to consider it from the client’s point of view, according to the opinion, because communications should always be governed by the overall principle of what is in the best interest of the client.

On the question of when clients should be told of the lawyer’s departure, the opinion suggests a reasonableness standard. Although this question is often fact specific, any suggestion that the departing lawyer should be compelled to wait to notify clients until after leaving the law firm has been widely rejected, according to the opinion. On the other hand, generally speaking, the departing lawyer should not tell clients about the decision to leave until after telling the law firm.

As to the form of the communication to the client, the law firm and departing lawyer should attempt to agree upon and provide a joint written notice to relevant clients. If the parties cannot agree on a joint notice, unilateral notice is ethically permissible and may be required in some circumstances. And although it is not essential that both parties inform the client, “if one fails to notify a client, or refuses to do so, the other one must.”

The opinion identifies various categories of information that should be provided in the client notice, including the timing of the departure, where the departing lawyer is going, the ability and willingness of either side to continue with the representation, the client’s options, and location of the client’s file. When the notice is unilateral, however, one side should be cautious about opining on the ability of the other side to handle the matter, as “[m]aking such statements poses a risk that the information could be false or misleading.”

Solicitation Is Permitted Within Limits

The opinion provides that when the departing lawyer has a “prior professional relationship” with the client, that lawyer is ethically permitted to solicit that client in compliance with the appropriate ethical rules and statutes. Under no circumstances, however, should a lawyer attempt to keep a client by imposing conditions on how or when the client can leave the firm, transfer matters, or receive files.

On whether solicitation is permissible before the lawyer actually departs, the opinion concedes this to be an “open question that is likely to be a very fact-specific inquiry.” The opinion notes, however, that prohibiting lawyers who have already given notice to the law firm of the departure from properly soliciting clients and competing for clients on equal footing with the law firm could undermine client choice.

Although protecting client confidences is always an important obligation of any lawyer, this duty often is implicated when a departing lawyer must check for conflicts with a potential new law firm. The opinion recognizes an “obvious tension between the duty to maintain client confidences and the duty to avoid conflicts of interests with clients,” but it declined to address the issue of whether and under what circumstances information protected by the duty to maintain confidences can be provided in order to permit a conflict check.

Avoiding a “Custody Battle”

“The key takeaway from this opinion,” says Michael S. LeBoff, Newport Beach, CA, cochair of the ABA Section of Litigation’s Professional Liability Litigation Committee, is that the committee “doesn’t want the client to be caught in the middle of some type of custody battle between the law firm and the departing attorney.” The ultimate “custody” of the client must be based on the client’s interests, not the lawyer’s or the firm’s. “The committee wants to make sure the departing attorney and the law firm’s own economic interests come second to the interests of the client,” says LeBoff.

Lawyers and firms positioning to take or keep clients may soon become an even more crucial issue. “This opinion is extremely timely given the current pandemic, which will no doubt result in many firms downsizing and/or reorganizing,” says Jeanne M. Huey, Dallas, TX, newsletter & web editor for the Section of Litigation’s Ethics & Professionalism Committee. “Every firm should create or update its policies and procedures manual to address each step involved when either a lawyer or a client leaves the firm and make sure that all employees understand and follow those procedures,” she advises.

Huey makes another important point about these uncertain times: “The reminder that the client’s interest remains paramount takes on even more import when times are hard, and lawyers may become desperate to keep clients (or leave the firm and take clients with them) so that they can feed their families,” she predicts. “But we must always remember that lawyers are different, and we must maintain our professional standards regardless of what the rest of the world may be doing.”

Missed Opportunity and Open Questions

Although the opinion is a “good general discussion” of many ethics rules, “it neglects to address the complex issue of confidentiality under ABA Rule 1.6 with respect to conflict checks, a rule that applies to everyone involved—the current firm, the lawyer, and the receiving firm,” observes Huey. “Thankfully,” she notes, “we have ABA ethics opinions to fill in the blanks,” including ABA Opinion 455 (2009), ABA Opinion 471 (2015), ABA Opinion 480 (2018), and ABA Opinion 489 (2019).

Although the committee warns against one side unilaterally opining to the client about the other, LeBoff sees an interesting quandary. “Are you allowed to, and do you have an obligation to,” posits LeBoff, “share negative information about the departing lawyer or the law firm, to the extent that the information would be relevant to a client’s decision on whom to maintain as his or her attorney?” He adds, “Do you have to air that dirty laundry to the client? I’d be very hesitant to do that, but the opinion seems to suggest there may be an obligation.”

Huey cautions both lawyers and firms to be prudent when making a pitch to the client. “If the firm and the departing lawyer both make it uncomfortable or difficult for the client to make a decision, or the client feels pressured to do something it may not really want to do because of relationships with the firm, both the lawyer and the firm may lose,” she warns.