You’ve been with your current law firm for a number of years. Things may be getting stagnant, or you haven’t moved sufficiently towards your hoped-for direction. You’ve decided that perhaps the grass is greener on the other firm, and it’s time for you to move on. You’ve made the decision to either join another firm or strike out on your own. This is certainly a decision that is made following thorough consideration. Though the professional move itself has been carefully considered, have you thought about – and laid out – the ethical obligations attached to this change?
Of course, your clients should be among the first to be considered as you evaluate and gear up for your impending career change, although you owe a fiduciary duty to your current firm, as well.
Ethical Obligations To Your Client(s)
First, let’s address your clients.
ABA Formal Opinion No. 99-414 (Sept. 8, 1999) explains attorneys’ and firms’ ethical obligations in the face of an attorney’s changing firms, per the Model Rules of Professional Conduct. One of the first things that the Opinion No. 99-414 brings out is that attorneys have a duty and ethical obligations upon withdrawal to disclose “pending departure in a timely fashion to clients for whose active matters (s)he currently is responsible or plays a principal role in the current delivery of legal services.”
Opinion No. 99-414 also clarifies from whom the communication should come. ‘This can be accomplished by the lawyer herself, the responsible members of the firm, or the lawyer and those members jointly.” Joint notification by both the firm and the departing attorney is preferred, with the purpose of being as fair to the client as possible. The Opinion does acknowledge, however, that this will not always be possible. If that’s the case, the departing attorney should be sure to notify her clients.
Throughout Opinion No. 99-414, it is crystal clear that a client is to be treated with the utmost care as far as whether (s)he wishes to stay with the departing attorney, current firm, or choose another attorney and firm entirely. Clients are most certainly not chattel.
Related to this is the handling of a client’s files. ABA Model Rule 1.16(d) states, in part, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests…” A client’s files belong to the client and not to a firm or attorney. Care must be taken to ensure the files follow the client, even though the client may still owe the current firm fees.
An attorney who is departing a firm is obligated to do his or her due diligence to her current employer, be the terms of the career change perfectly amicable or otherwise. Before making solid plans to leave, (s)he should check his or her partnership agreement with their current firm.
Most firms won’t place a non-compete clause in the professional agreement – it would violate ABA Model Rule 5.6(a), which prohibits an agreement that “restricts the right of a lawyer to practice after termination of the relationship.” However, be aware that a firm is not unlikely to reduce equity or profits that have been earned.
Confidentiality of Information
How much information may a job-hunting attorney tell a potential new firm about the current firm’s business, such as identifying clients? Both the prospective firm as well as the attorney must be able to ensure that no conflict of interest will take place should the attorney and prospective firm decide to work together.
However, ABA Rule 1.6(a) states that “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Additionally, we have ABA Rule 1.7 Conflict of Interest: Current Clients, ABA Rule 1.9 Duties to Former Clients and ABA Rule 1.10 Imputation of Conflicts of Interest: General Rule.
Luckily for the entire mobile set of attorneys, the ABA issued Formal Opinion 09-455 (Oct. 8, 2009). Opinion No. 09-455 states that “In most situations involving lawyers moving between firms, however, lawyers should be permitted to disclose the persons and issues involved in a matter, the basic information needed for conflicts analysis.” Basic information should only include “persons and issues involved in a matter.”
Both the departing attorney and current law firm have clear ethical obligations to ensure clients involved are provided legal services. A large portion of that is to promptly give notice to involved clients, preferably in a joint announcement of the departing attorney and current law firm.
An attorney does not violate the Model Rules by informing current clients before giving notice to the current firm, as long as she “also advises the client of the client’s right to choose counsel and does not disparage her law firm or engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation,” according to Opinion No. 99-414.
The process of switching employers is extensive for any professional, but particularly for attorneys, as they are professionally obliged to consider what is in the best interest of their clients at any given turn. By doing his or her due diligence and maintaining open lines of communication with their current employer and clients, any legal professional looking to a career transition is bound to undertake the venture both successfully and ethically.