When a lawyer makes a decision to leave a law firm, what ethical duties are required of both the firm and the departing lawyer?
ABA Formal Opinion 489 offers excellent guidance on that point.
The question is critical because lateral movement of lawyers from one firm to another has reached a “fever pitch,” according to the ABA. The pandemic only accelerated that trend.
The opinion confirms that a lawyer has a right to switch firms. In fact, the ethics rules prohibit non-competition clauses in partnership, member, shareholder or employment agreements. When a lawyer gives notice, the opinion says, the lawyer and the firm have an ethical duty to develop a plan that is orderly, flexible and protects client interests during the lawyer’s transition.”
“Firms may require some period of advance notice of an intended departure,” the opinion says. “The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them. … 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.”
Key provisions of ABA Formal Opinion 489 appear below.
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Formal Opinion 489: Obligations Related to Notice 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.
Read ABA Formal Opinion 489 here.
Read an ABA press release here.
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