The “Do” Checklist

1. Inform the firm of your intent to depart.

The Joint Opinion of the Pennsylvania and Philadelphia Bar Associations imposes an ethical requirement to notify the firm of an intended departure, although nothing in the rules of professional responsibility requires such notice. The obligation arises out of recognition of the firm’s ethical obligations to the client, which exist separate and apart from the attorney’s individual obligations. The rationale is that the withdrawing partner is ethically bound to the firm and the client not to interfere with the former’s ability to honor its obligation to the latter.

The timing of such notice will depend upon the circumstances and is governed by a rule of reason. If there is a contract that covers the issue, it will control, within reason.

However, as a practical matter, the latest date by which the lawyer should provide notice to the firm is the date on which clients are notified of the lawyer’s intent to depart. An earlier joint opinion of the two Pennsylvania ethics committees had generally associated the timing of the notice to clients with that of notice to the old firm. The 2007 joint opinion affirmed that approach. Therefore, as a rule of ethics in Pennsylvania, the firm must be told no later than any client of an actual intent to depart.

This is the easy part. Of course the departing attorney is going to notify clients of his or her plans to change firms. Also, it is the client’s decision, and only the client’s decision, as to whom is going to represent it. See Adler, Barish, Daniels, Levin & Creskoff v. Epstein. The question is not whether to notify the client, but when and what to say.

The joint opinion says not to notify clients before notifying the firm. But is that realistic in a world in which the decision to leave, and the new firm’s willingness to provide an opportunity to leave, is dependent upon the client’s decision whether to be represented by the old firm, the departing lawyer and the new firm, or a third firm?

Where the situation gets more dicey is, for example, when the departing attorney did not originate the client, but rather was assigned client responsibility by the firm and cultivated a relationship; or where a number of attorneys have a relationship with the client, who may even have been “sold” by the departing attorney and other members of the firm. Can an attorney who is contemplating departure get a head-start on the anticipated competition for such clients by notifying the client before notifying the firm?

The answer is that it depends. It depends upon the relationship between the departing attorney and the old firm, i.e., whether with an associate, who does not owe a fiduciary duty of a partner, or a partner who does. It depends upon whether the attorney has made the decision to leave irrespective of the client’s decision, and in fact is a “departing attorney,” or is merely contemplating the possibility of departure depending upon the commitment of certain clients to him in the event he were to move to a new firm. And it depends upon what the attorney says. It is one thing to say: “I am contemplating a career change to another law firm; our relationship is important to me and will be to whatever firm I go to. As I talk to people, what can I say to them about business from you in the future?” It is an entirely different thing to say: “I am moving to XY&Z law firm because I’m not being treated right here. XY&Z is much better suited than [existing firm] to meet your needs, and their rates are lower. Can I rely on your business in the future?”

The first conversation is asking a client how it feels about the attorney and inquires conditionally about an ongoing relationship, all the while making it clear that it is the client’s choice. There is nothing in the ethics opinions that proscribes such exploratory conversations. The second statement is potentially actionable pre-withdrawal solicitation of a firm client, a breach of contract and a breach of fiduciary duty to the old firm.

Practice Pointer: There is nothing in the rules of ethics, or the law of fiduciaries or law of unfair competition, to prevent an attorney considering the possibility of changing firms to explore with clients the likelihood of ongoing business from them in the event of a lateral move. Care must be given to what is said and the attorney must avoid saying anything to convince the client that it would be better for the client if it referred legal work to the attorney rather than the old law firm. That is solicitation.

3. Try to be fair.

This is a variation of the ethical maxim that one should treat others as one would like others to treat oneself. However, this does not mean that the departing lawyer should only say nice things about the firm (which, presumably, he would want the firm to say about him) and urge clients to stay with the firm. Rather, this variation of the Golden Rule derives more from the Code of Hammurabi, which dealt with retribution for wrongs committed — as in, “an eye for an eye, a tooth for a tooth.” Self-interest drives this rule, because if one is not “fair” and solicits a client, steals a file or hides a fee, even if one believes the other side has done, or will do, the same, then the attorney has not only violated this rule, but most likely fiduciary and contractual duties to firm, partners and possibly clients.