In any robust economic market with a lot of lawyer movement between law firms—like the one we are in now—many ethical issues will necessarily arise. Moving between law firms is always a stressful process for attorneys, but among the many things they have to pay attention to, lawyers must be aware of and comply with their ethical responsibilities.
If you’re thinking about leaving your law firm, consider the advice.
Review your relevant firm documents—perhaps a partnership agreement, employment contract, employee handbook, or other policies. Most firms will require some notice period before your departure, and some will include enforceable non-solicitation provisions as to other firm personnel. In any case, you’ll want to be familiar with any contractual obligations.
Review your jurisdiction’s Rules of Professional Conduct (RPC) and any applicable ethics opinions. ABA Formal Opinion 489 is also especially helpful. It provides guidance on how to properly and timely communicate lawyer transitions to firm clients and transfer client files effectively after receiving client direction.
It is best to give notice in person. Our new working environments, however, due to COVID-19, make that a little more difficult now, but it is still ideal to have a face-to-face meeting with your supervising attorney to provide notice of your departure. You should go into those meetings prepared to be asked to leave immediately—that rarely happens, but you will want to be ready if it does. Prepare a list of any upcoming important dates for client matters. If you anticipate transitioning clients with you to your new firm, it is best to go into that meeting with a list of the clients you would like to contact and a proposed joint notice form for the firm’s review.
Most importantly, you should not notify any firm clients about their departures without giving the firm notice. Some firms have enforceable provisions in partnership agreements or employment contracts that require lawyers to wait a short period—perhaps a couple of days—before notifying clients of a lawyer’s departure.
A common mistake that lawyers make when moving to a new law firm is disclosing too much information to the recruiters they are working with or their potential new firm. While many jurisdictions have adopted the exception to RPC Rule 1.6 that allows lawyers to run conflicts to move firms (i.e., reveal information about representation of prior clients), not all jurisdictions have. Regardless, you must be mindful that you should not disclose more information than is necessary to complete the conflicts process and must not disclose sensitive information about your old law firm to your recruiter or new law firm. For example, while a lawyer can generally describe her own book of business, she should not disclose her old firm’s annual revenue.
Generally, most questions surrounding lateral lawyer transitions will require balancing the duties lawyers and law firms owe to their clients with the duties lawyers owe to their present law firms. While there are ethics rules, opinions, and case law to help inform these issues, you will want to be especially mindful of potential areas of ambiguity and seek legal assistance where necessary.
Have you been thinking about changing jobs, starting your own firm, or diving into a new area of practice? Are you planning to hire a new lawyer, or are you dealing with a lawyer’s departure? In the on-demand CLE program Separation Anxiety: The Ethics of Lawyer Transitions, a professional responsibility counsel for a national firm, a lawyer who represents lawyers, and a legal regulator discuss the ethical implications when lawyers are on the move.
