Last week a lawyer contacted me and posed the following question:
If I opened my own practice in January what are my obligations to my clients? Can I take the files with me automatically? I’m pretty close to opening my own thing.
TL;DR: No, there’s more to it than that.
I get a number of search queries as it relates to leaving a law firm. Stuff like:
- ethics of leaving a law firm
- leaving law firm letter to clients
- switching law firms associate
- taking clients when leaving a law firm
As it comes up regularly, here are a are a number of things to take into account when you leave a firm.
Follow The Local Ethics Rules
The absolute first thing you should do is look at the ethics opinions from the state bars in which you are licensed. State bars can have varying takes on the ethical duties of lawyers when they leave a firm. These specific ethics opinions should be the first place you look for guidance
If you want more information you can review ABA Ethics Formal Opinion 99-414 for a general overview, but it’s from 1999. While it’s dated, I’m going to refer to it throughout because it at least gives a baseline.
99-414 lays out five factors to take into account when you leave a law firm:
- disclosing your pending departure in a timely fashion to clients for whose active matters you currently are responsible or plays a principal role in the current delivery of legal services;
- assuring that client matters to be transferred with you to the new law firm do not create conflicts of interest in the new firm and can be competently managed there;
- protecting client files and property and assuring that, to the extent reasonably practicable, no client matters are adversely affected as a result of your withdrawal;
- avoiding conduct involving dishonesty, fraud, deceit, or misrepresentation in connection with your planned withdrawal; and
- maintaining confidentiality and avoiding conflicts of interest in your new affiliation respecting client matters remaining in the your former firm.
Which Clients Can I Contact When I Leave A Firm?
Per 99-414, a lawyer should provide notice to “clients for whose active matters she currently is responsible or plays a principal role in the delivery of legal services.”
What about clients with which you only having a passing relationship? If you contact them is it solicitation?
99-414 states that you don’t have a “prior professional relationship…solely by having worked on a matter for the client along with other lawyers in a way that afforded little or no direct contact with the client.” Instead, you need to have had significant, substantive client interaction to establish a “prior professional relationship” if you want to contact them.
How to go about doing this?
- Notify your firm that you’re leaving.
- Request issuance of a joint letter with the firm to notify clients with which you’ve had “significant personal contacts” that you’re leaving.
- If the firm rejects a joint letter, then separate letters may be sent by you & the firm to clients with whom the departing lawyer had substantial personal contact as long as: 1) the letters do not disparage the firm or the lawyer; and 2) the letters do not involve improper solicitation.
- The firm should review its malpractice policy for requirements on maintaining a copy of certain parts of the client’s file (Aside, you better sure as hell get malpractice if you’re leaving a firm to go solo).
- This is all because, despite that you being “their lawyer” and have handled their entire case, they are the firm’s clients. You can’t make that call on your own.
- The client should formally request, in writing, that they wish for you to continue with their representation, and that they wish to cancel the firm’s current representation of them.
- The firm has an ethical duty to hand over all client files, paper and electronic, at the client’s request.
- You have an ethical duty to file a substitution of counsel/notification of address change with the court, to assure that the old firm is still not listed as counsel of record.
But I want to contact my clients first before I tell my firm I’m leaving! While it might be technically permissible (check your local rules!), it may lead to an ethical quagmire. If you have a good relationship with a client, if they’re “your client,” they should want to come with you regardless.
Who Else Should I Inform When I Leave A Firm?
The following people/groups need to be notified about the new address (and other contact information), and the effective date of the change:
- State Bar Membership Records Department
- Courts: including clerk’s office and the Judicial Assistants for each judge where you have a pending matter.
- Opposing counsels
- Your previous firm’s malpractice carrier, accountant, and banker.
How Should I Handle Trust Account Funds When Taking Clients?
Clients that have given the firm an advance fee or advance cost deposit take the money with them (less earned fees and costs) when they leave the old firm. You take the trust account funds and place them in your new firm’s trust account.
Your old firm should write a check, consistent with the written instructions of the client, to either the client or to the trust account for your new firm.
It’s inappropriate for the old firm to have their receptionist tell callers who are looking for you “we don’t know where he is.” That game is unprofessional and not acceptable.
When you leave, make sure all firm staff are instructed to provide callers your new phone number, email, and mailing address. All your mail (and email) should be forwarded to your new address. Also, if you can swing it, try and get a partner designated to handle any client inquiries that relate to you specifically.
How To Leave A Law Firm
It’s one of those things that will likely only happen a few times in your career, so make sure that you don’t screw it up. Also, don’t rely exclusively on the above, it’s just a general outline of how to proceed. The Ohio Board of Professional Conduct also recently released (Dec. 2017) an Ethics Guide on Switching Law Firms (PDF) that can provide more guidance. It’s Ohio specific obviously, but still a good guide.
I’d suggest checking with your State Bar’s Practice Management Assistance Program and/or Ethics line if you have even an inkling of a question. The Bar dues you pay every year go to fund those things, take advantage of them when you need them.
So exactly how do you leave a law firm?
It’s also worth noting that if you’re striking out on your own, you’re going to still want to have other lawyers around to bounce ideas off of. People to commiserate with and share in your victories and defeats.