When a lawyer intends to leave a firm, a plan should be developed to make sure the transition goes smoothly and clients are protected, says a new ABA ethics opinion.
In addition, the lawyer should provide sufficient advance notice so that staffing adjustments can be made, firm property can be secured, and clients can make informed decisions about where they want their files transferred.
Those are some of the key aspects of Formal Opinion 489, released in early December by the American Bar Association Standing Committee on Ethics and Professional Responsibility.
“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,” says this ABA news release. “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 transition.”
Formal Opinion 489 cites several model rules of the ABA Model Rules of Professional Conduct that apply to the orderly transition of client matters and restraints on a client’s choice of counsel in departure situations.
ABA ethics opinions are not binding on individual states, but states often take the ABA’s guidance into consideration as they draft and revise their own rules.
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Formal Opinion 489: Obligations When Lawyers Change Firms
“Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.
“Firms may require some period of advance notice of an intended departure. 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. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.”
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