The “Don’t” Checklist
The departing lawyer should not:
- Seek a client’s commitment of legal work to a new firm before notifying the old firm of the intent to leave.
- Remove client files from the firm prior to notice to the firm. Note: the issue of copying electronically stored documents to a flash drive or other portable storage device has not been addressed by ethics committees or courts. Because no one’s interests are harmed and the client is protected in the event of a delay in the transfer of a file, there does not appear to be anything wrong with it.
- Advise a client not to pay an existing bill or to pay the attorney directly.
- Compete with the old firm prior to departure by comparing services or rates of the two firms.
- Malign the quality or price of the legal services of the firm.
- Solicit associates or other firm employees prior to actual departure to leave with him. Note, however, this non-solicitation rule should be subject to the same distinction drawn in Part 2 between the “what if” exploratory conversation with a client and active solicitation once the decision to leave has been made. Furthermore, there is nothing that prevents the withdrawing attorney from responding to inquiries from associates and staff after the announcement of his departure.
Practice Pointer: Once the decision to leave has been made and the firm notified, the firm and the departing attorney should identify active clients for which the departing lawyer is responsible or plays an important role in representation of those clients. They should then jointly prepare a letter, for the departing lawyer’s signature, informing them of:
- The departing lawyer’s intended departure, the timing of the departure, the departing lawyer’s new association and willingness of both the old and new firm to continue the current representation of the client.
- The client has the sole right to decide who will complete or continue the representation, whether the old firm, the departing lawyer or a new lawyer altogether.
The letter should also seek client direction regarding the transfer of files. As it is a joint letter, as a practical matter it will not contain disparaging comments about either party, nor will the letter urge the client to continue with one relationship or another. Nevertheless, the joint opinion expressly proscribes both. If the firm and the departing lawyer cannot agree on the language of a letter, then separate letters can be sent.
The old law firm should not:
- Prevent the departing lawyer from honoring his ethical obligations to clients or attempt to thwart any ongoing relationship between that lawyer and departing clients.
- Forbid a departing lawyer from announcing his departure, notifying clients or opposing counsel in a litigated matter.
- Instruct firm personnel not to disclose the whereabouts of former lawyers to clients or other callers.
- Withhold files of departing clients as leverage in disputes with departing lawyer over fees or other strictly lawyer-to-lawyer issues.
It is the unusual case when an attorney with a substantial practice, or the potential for such a practice, decides to leave a law firm, that the blueprint for a professional, noncombative, cooperative transfer of the attorney’s practice is followed. Rather, it is too often the case that acrimony, jealousy, greed and distrust cloud judgment and cause people to do things that result in litigation. No one wants that. Not only is it costly, it is emotionally taxing. It also is unseemly to the client. It is therefore wise for the departing attorney to retain experienced counsel to go over the do’s and don’ts of his jurisdiction, and to serve as an intermediary in discussions with the firm in case it does not take the news of the departure well.
Counsel can also review any applicable partnership or employment agreements in order to advise on the effect that the timing of a departure would have on the departing lawyer’s compensation from the old firm. This topic requires concentration on the law of fiduciaries and contracts and will be addressed in a separate article.
© 2012 The article “Do’s and Don’ts for Departing a Law Firm” was part of a three part series which appeared on the Legal Intelligencer’s blog between February 21-23, 2012. Further duplication without permission is prohibited. For reprint information, please contact ALM Publications reprint department, 877-257-3382, email@example.com or visit www.almreprints.com.
ABOUT DON FOSTER
Don Foster has been trying cases to verdict in federal and state courts throughout the country for over thirty years. He also serves as outside general counsel and advisor to small businesses in a variety of industries. His trial and alternative dispute resolution experience is varied and includes disputes involving title insurance, intellectual property, health care, franchising, corporate governance, law firm dissolutions, attorney relocation and fiduciary litigation in Pennsylvania’s Orphans Courts.
Mr. Foster is a member of the Board of Directors of Highmark, Inc., one of the larger Blue Cross/Blue Shield companies in the country. He currently serves as Chairman of the company’s Investment Committee after chairing the Audit Committee. He also serves on the Executive and Corporate Governance Committees. Prior to the formation of Highmark, he served on the Board of Pennsylvania Blue Shield. Mr. Foster serves as a Judge Pro Tempore in the Philadelphia Court of Common Pleas, and has been appointed to a two year term as a Delegate in the Pennsylvania Bar Association House of Delegates.
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