What They didn’t teach you at the Law School
Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.
In today’s legal market, the idea of an associate or a partner leaving their firm to join another has become almost routine. Gone are the days when a lawyer spent his/her entire career with a single law firm. But to say that something has become routine does not mean it is not potentially dangerous. A lawyer’s decision to leave his/her law firm to join another one, often termed as “lawyer mobility”, is fraught with potential legal and ethical issues.
Whose Clients Are They?
Whenever a lawyer is hired by a new firm, it is believed that he has a set of clients that will follow him to the new firm. But in reality, it is entirely up to those clients to decide whether they want to follow the lawyer to his new firm or continue to be represented by lawyers at the old firm itself. And lawyers who seek to ensure that their clients also move with them at their new firm by discussing their planned departure prior to informing their current firm do so at their own peril. Both the leaving lawyer and the departed firm should recognize that it is ultimately the clients’ choice as to who they want to be represented by, and that the process of informing those clients of the lawyer’s departure and discussing future representation should be carefully considered in order to avoid potential pitfalls.
The process of informing the client of the lawyer’s departure can implicate numerous ethical rules and legal considerations relating to solicitation of clients, fiduciary duties, conflicts of interest, and unfair competition. Therefore, the leaving lawyer and the departed firm can work together to craft a communication to the affected clients informing them of the lawyer’s impending departure, and that it is their choice as to who should continue the representation. If a joint communication is not possible, the leaving lawyer is still under an ethical obligation to provide notice to those clients for whom the lawyer is primarily responsible.
A lawyer should be restricted in what he can say to his clients regarding the departure. The communication should not be false or misleading. Accordingly, the leaving lawyer should not inflate or otherwise misrepresent his involvement in working on the client’s matter. These same obligations apply to the lawyers at the departed firm, meaning they cannot downplay or otherwise minimize the leaving lawyer’s involvement in a case in an attempt to induce the client to stay with the departed firm.
Practically speaking, a leaving lawyer is unlikely to notify his client of his intention to leave his firm to join another without, at a minimum, informing the client of where he is going and that he would like to continue the representation. As a result, the timing of the leaving lawyer’s communication with clients implicates significant tensions between his interests and the interests of the departed firm in competing to retain the affected clients. Therefore, a leaving lawyer should normally give notice of the departure to his firm before contacting clients in order to avoid accusations of impermissible solicitation.
In addition to the ethical considerations as noted above, a leaving lawyer must also consider the legal and fiduciary issues that arise from his decision to leave the law firm. If he does not, he may be faced with litigation against his former colleagues. The departed firm may assert claims against the leaving lawyer for breach of fiduciary duty, misappropriation of trade secrets, breach of contract, unjust enrichment, among others. Many of these claims are especially likely to be implicated where the leaving lawyer solicits his clients before informing the departed firm.
Withdrawal and File Transfer
Once the client has made his decision as to who should continue the representation—the leaving lawyer, the departed firm, or another lawyer—the departed firm is ethically obligated to take steps to the extent reasonably practicable to protect a client’s interests, including surrendering the papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that have been incurred or earned.
The client is entitled to all the papers and property delivered to the lawyer by or on behalf of the client for which the client has paid the lawyer’s fees and reimbursed the lawyer’s costs; all pleadings, motions, discovery, memoranda, correspondence, and other litigation materials in pending claims or litigation matters; and all items for which the lawyer has agreed to advance costs regardless of whether the client has reimbursed the lawyer for the costs and expenses, including depositions, expert opinions, business records, witness statements, and other materials that may have evidentiary value.
However, a non-paying client is not entitled to documents in the lawyer’s file that have not been filed or served, including lawyer notes, internal memoranda, and documents obtained by third parties.
Regardless of whether the leaving lawyer or the departed firm is chosen by the client to continue the representation, both parties have an ethical obligation to protect the client’s interests following termination and promptly forward the client file to him or the lawyer of his choice.
What Can the Leaving Lawyer Take With Him?
A leaving lawyer’s decision to take certain information, such as client lists, following his departure from the firm may have serious consequences. Client files generally follow the client. But what if the client is not following the leaving lawyer to the new firm?
Many clients require as a condition of retaining a law firm that client documents should not leave the firm, or should be subject to destruction after a certain period, or both. Similarly, a non-disclosure agreement or protective order makes it impermissible for the leaving lawyer to take documents that he created or that would normally be in the public domain, such as pleadings and briefs.
Although the issue of lawyer mobility in modern legal practice presents numerous challenges, a lawyer’s lateral move to another law firm can be accomplished without serious conflict through cooperation, transparency, and communication.
*Executive Editor, Lawyers Update; Director General, Universal Institute of Legal Studies