The departure of a lawyer from a firm often creates a highly-charged, emotional atmosphere which can make it difficult for those involved to appropriately consider their responsibilities to the clients and to each other. ABA Formal Opinion 489, released in December 2019 by the ABA Standing Committee on Ethics and Professional Responsibility, contains the latest ABA direction regarding ethical obligations during this difficult time. These duties range from notifying the firm and clients of the intended departure, joint efforts by the firm and the departing lawyer to ensure the orderly and timely the transition of files as directed by clients, the return of firm property, and organizing files that remain with the firm.
Note that the ABA opinion relates to the Model Rules, which provide the basis for all states’ rules of professional conduct. Some states, like Florida and Virginia, have specific rules regarding departing lawyers and client communication, so it’s important to consult your state’s rules.
The Opinion recognizes that part of the lawyer’s duty to communicate under RPC 1.4 includes the duty to notify clients of lawyer departures. To that end, the Opinion recommends – but does not require -- that the departing lawyer and law firm work toward a joint communication. However, the departing lawyer and the firm may communicate unilaterally with the clients, with some minor limitations.
As to firm efforts to prevent or lessen lawyer mobility, identified in part in RPC 5.6, the Opinion states that firm organizational agreements “cannot impose a notification period that would unreasonably delay the diligent representation of the client or unnecessarily interfere with a lawyer’s departure beyond the time necessary to address transition issues, particularly where the departing lawyer has agreed to cooperate post-departure in such matters.” In addition, firms are prohibited from penalizing a client who chooses to move with the departing lawyer by withholding firm resources needed to effectively represent the client prior to the lawyer’s departure.
According to the Opinion, departing lawyers have a duty to cooperate with the firm in order to organize and update files for clients remaining with the firm, including such information as deadline calendaring and educating replacement counsel file, as well as reasonably cooperating in billing. A departing partner may be required to return firm property, including intellectual property, proprietary information, and equipment.
It’s a best practice for firms to carefully consider and establish written policies educating lawyers about the procedures the firm will follow during a lawyer departure. Identifiable and uniform expectations lessen the possibility of breaches of ethics rules, the standards of care, and fiduciary duties.