Law Firm Representation After Moving: What You Need To Know

When a lawyer leaves a law firm, the client must choose between staying with the firm, moving with the lawyer, or retaining new counsel. The client's decision is paramount, and they have the right to be represented by the lawyer of their choice. If the client decides to move with the lawyer, the lawyer must be mindful of conflicts of interest and navigate the disclosure of confidential information. The law firm and the departing lawyer must also notify the client of the lawyer's departure and provide contact information for the lawyer. While there is no rule against a law firm representing its employees, it is generally not advisable due to potential conflicts of interest and relationship issues within the firm.

Clients have the choice to stay with the firm or follow the lawyer to their new practice

When a lawyer leaves a law firm, clients with ongoing matters must be given the choice to continue their representation with the firm or follow the lawyer to their new practice. This is in accordance with Rule 1.4 of the Rules of Professional Conduct, which requires lawyers to keep clients reasonably informed about the status of their matters and provide enough information for them to make informed decisions.

In such situations, the departing lawyer and their former firm should negotiate the wording of a jointly delivered letter to each affected client. This letter should include an express statement of the client's right to choose and a "ballot" for the client to register their decision. The joint letter minimizes suspicion and resentment triggered by individual attempts of the lawyer and firm to "grab" the client. It also ensures that both parties comply with their ethical duties to the client.

If a joint letter cannot be agreed upon, the departing lawyer and the firm may communicate the necessary information independently. However, they must do so without urging the client to sever ties with the other party, disparaging the other, or making false or misleading statements. Regardless of the client's choice, both the departing lawyer and the firm continue to owe the client duties of competence, diligence, communication, and confidentiality.

It is important to note that if a client elects to move with the departing lawyer, the lawyer must be cautious of conflicts of interest when bringing the client to their new firm. Additionally, clients have the right to change attorneys if they are unsatisfied with their representation, but this may result in delays as the new attorney prepares for the case.

Lawyers must notify clients of their departure and keep them informed

Lawyers have an ethical duty to notify clients of their departure and keep them informed. This is supported by Rule 1.4 of the Rules of Professional Conduct, which requires lawyers to keep clients "reasonably informed" and provide sufficient information for clients to make "informed decisions". The ABA Ethics Committee interprets this rule to require notification to clients in all circumstances.

However, the CBA's Committee on Professional Ethics disagrees, stating that pre-departure notice is "ethically permissible but not mandated". Despite this disagreement, it is generally agreed that the best practice is for the departing lawyer to notify the firm of their decision before contacting clients. This allows the firm and the lawyer to negotiate the wording of a joint letter to each affected client, minimising suspicion and resentment.

The joint letter should include information such as the client's right to choose whether to stay with the firm, follow the departing lawyer, or retain new counsel. The client's choice should be respected, and if they choose to move with the departing lawyer, the lawyer must be mindful of conflicts of interest when bringing the client to a new firm.

If the lawyer and the firm cannot agree on a joint letter, they may communicate the necessary information independently, without urging the client to sever ties with the other party or making false or misleading statements. Ultimately, the client has the right to choose their representation and can change lawyers if they are dissatisfied.

Lawyers can take copies of research, CLE materials, and pleadings

When a lawyer leaves a law firm, the clients they represent are faced with a choice: stay with the firm, continue with the lawyer at their new firm, or find a new lawyer altogether. This can be disruptive to the client, and the law firm they were previously associated with. In such cases, the departing lawyer and their firm should negotiate the wording of a jointly delivered letter to each affected client. This joint letter should contain an express statement of the client's right to choose their representation going forward.

The lawyer who is moving firms may also be wondering what they can take with them in terms of documentation. The ABA ethics committee has concluded that a lawyer may properly take copies of research or CLE materials, pleadings, and form or template documents "to the extent they are prepared by the lawyer" and/or could be "considered in the public domain." Even if the "title" to such documents technically belongs to the firm, the committee found that it serves no purpose for a firm to prevent a departing lawyer from taking such documents.

With respect to client lists, the departing lawyer may create such a list in preparation for their move, even for the purpose of obtaining financing for their new practice. However, this list must be based only on information already known to the lawyer about each client or information that is available publicly.

The departing lawyer must also be mindful of conflicts of interest when bringing clients to a new firm. The ABA Formal Opinion 09-455, "Disclosure of Conflicts Information When Lawyers Move Between Law Firms," provides guidance on how to best navigate the disclosure of confidential information to avoid conflicts.

Law firms can send another attorney to court

When a lawyer leaves a law firm, it can be disruptive to client relationships and representations. In such cases, the client must be given the choice to either stay with the firm, move with the departing lawyer, or hire a new lawyer. If the client chooses to stay with the firm, the law firm can send another attorney to represent the client in court. This is because the contract signed with the lawyer/law firm is usually to retain the firm and not a specific attorney. Sending another attorney to court is also common when the attorney has a scheduling conflict, such as being in two different courts at the same time.

If the client decides to move with the departing lawyer, the lawyer must be mindful of conflicts of interest in bringing the client to a new firm. The client must also be notified of the lawyer's planned move. This is an ethical requirement that arises from the obligations under Rule 1.4 of the Rules of Professional Conduct, which require a lawyer to keep the client reasonably informed about the status of their matter.

It is important to note that the client has the right to fire any lawyer and retain alternate counsel if they are not comfortable with their representation. However, if the case is close to or currently in trial, a judge may not allow the client to hire another lawyer. In such cases, the client can complain to the state bar or send a letter to the court explaining the situation.

Clients can fire their lawyer and hire another one

Before firing your lawyer, it is essential to consider the potential costs involved. You may end up paying more in attorney fees by hiring a new lawyer, as you may still owe fees to your previous lawyer. Additionally, lawsuits can be slow, and firing your lawyer may not always help your case. It is crucial to have valid reasons for firing your lawyer and to ensure that you have secured the services of another lawyer before making any hasty decisions.

When choosing to fire your lawyer, it is recommended to first have a face-to-face meeting with them to address any issues or misunderstandings. During this meeting, you can ask for a copy of your complete file and a letter confirming the end of their representation, including any claimed fees and costs. This letter can serve as evidence of the termination of their services and help determine any outstanding payments. It is also essential to be mindful of any conflicts of interest that may arise when bringing your case to a new firm.

In certain situations, a lawyer may also decide to terminate their professional engagement with a client. This decision often arises from a lack of cooperation or collaboration from the client, such as repeatedly failing to provide necessary information or disregarding legal advice. Therefore, it is crucial to maintain open communication and provide the necessary information to ensure a harmonious working relationship with your lawyer.

Frequently asked questions