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ABA issues new ethical guidance for when lawyers leave

Lawyers have the right to change firms, and from all indications the lateral movement of lawyers from one firm to another has reached a fever pitch during the past few years.

Departing lawyers and their firms have an ethical duty to protect clients’ interests during a transition.

Departing lawyers and their firms have an ethical duty to protect clients’ interests during a transition.

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The primary reason for this trend is the increased earning potential in changing firms, although other reasons were cited in a 2018 survey by Robert Half Legal. Work-life balance, career autonomy and advancement potential received the next-highest mention.

Amid this trend, the American Bar Association Standing Committee on Ethics and Professional Responsibility released new guidance in December for lawyers and their firms exploring ethical obligations when lawyers leave for another firm.

Formal Opinion 489 reiterates that a lawyer has the right to switch firms and notes that ethics rules do not allow non-competition clauses in partnership, member, shareholder or employment agreements. When a lawyer gives notice, the guidance says, the lawyer and the firm have an ethical duty to develop a plan that is orderly, flexible and “protects client interests during the lawyer’s transition.”

“Firms may require some period of advance notice of an intended departure,” the opinion said. “The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them. … Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.”

The opinion drew praise in the legal media. Florida legal recruiter Joe Ankus, for example, applauded the ABA for stepping in and providing guidance on a process he describes as “cloak and dagger” in which too many decisions are made behind the scenes.

“Lawyers leave law firms for a lot of reasons and this [opinion] is trying to provide some safety bumpers for lawyers to leave law firms ethically,” Ankus told The American Lawyer.

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