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ABA issues new ethical guidance for lawyers, firms to consider when lawyers go elsewhere

The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance late last year exploring ethical obligations for lawyers when they change firms.

Formal Opinion 489 acknowledges 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 formal opinion suggests the lawyer and the firm develop a plan that is orderly, flexible and “protects client interests during the lawyer’s transition.”

The guidance also cites several model rules to consider under the ABA Model Rules of Professional Conduct related to the orderly transition of client matters and restraints on a client’s choice of counsel.

Firms may require some period of advance notice of an intended departure,” Formal Opinion 489 said. “The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. 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.”

In addition to Formal Opinion 489, the Standing Committee on Ethics and Professional Responsibility also released Formal Opinion 490 (Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts) and Formal Opinion 491 (Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings).

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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