When a lawyer leaves a firm, what happens to their email account?
Should the firm put an outgoing auto-reply message on the departing lawyer’s email account announcing the departure? Can the firm simply shut the account down? Or should the lawyer simply have all messages forwarded to their new email address?
These and related issues are tackled in a new State Bar ethics opinion.
Formal Ethics Opinion 6 addresses the ethical responsibilities of a law firm regarding a departing lawyer’s email account. Below are highlights from the opinion.
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NC State Bar 2021 FEO 6: Departing Lawyer’s Email Account
Here is the factual scenario underlying the opinion: Departing Lawyer is employed by Law Firm and utilizes an email address associated with the firm. Departing Lawyer has decided to terminate his employment with Law Firm and open his own law practice. Law Firm and Departing Lawyer sent a joint communication to Departing Lawyer’s current clients advising them of the departure and informing them that they have the option to continue their representation with Departing Lawyer, request that another lawyer with Law Firm take over the representation, or engage a lawyer from another firm.
Law Firm seeks guidance as to the ethical requirements relating to Departing Lawyer’s law firm email account after Departing Lawyer has left the firm.
Inquiry #1: Does Law Firm have an obligation to place an outgoing auto-reply message on Departing Lawyer’s email account announcing his departure, or may Law Firm simply deactivate Departing Lawyer’s email account?
Opinion #1: In order to comply with its professional responsibilities, Law Firm must keep Departing Lawyer’s email account active and must place an outgoing auto-reply message on Departing Lawyer’s email account. When a lawyer leaves a law firm, ‘both the departing lawyer and the responsible members of the firm who remain have ethical responsibilities to clients on whose active matters the lawyer currently is working to assure, to the extent reasonably practicable, that their representation is not adversely affected by the lawyer’s departure.’ ABA Formal Op. 99-414 (1999).”
Here are some other highlights of 2021 FEO 6:
- Departing Lawyer’s clients must be promptly notified that Departing Lawyer is leaving Law Firm.
- Law Firm’s obligations do not end once notifications have been sent to Departing Lawyer’s current clients. Law Firm is required to take reasonable measures to protect the interests of every client, regardless of whether the client remains with Law Firm or leaves with Departing Lawyer. See Rules 1.3, 1.4, and 1.16(d).
- Email and other communications may continue to come to Law Firm after Departing Lawyer leaves the firm. It is possible that Departing Lawyer’s current, former, or prospective clients may attempt to contact Departing Lawyer through his law firm email account. In addition, third parties involved in ongoing litigation with one of Departing Lawyer’s current clients may attempt to contact Departing Lawyer through his law firm email account.
- For this reason, Law Firm may not simply deactivate the account. Reasonable measures necessary to protect clients’ interests in this scenario include placing an outgoing auto-reply message on Departing Lawyer’s email account announcing his departure.
- The automatic response must include notice of the lawyer’s departure and, if appropriate, must provide new contact information for Departing Lawyer if the contact information is known or reasonably ascertainable by Law Firm. The response may also include an alternative contact at Law Firm for inquiries.
Read NC State Bar 2021 FEO 6 here.
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