A joint letter is part of the best practices for leaving your firm, but there are more issues to consider. Find them here.
Question: After four years at my current firm, I’ve accepted an offer to lateral to another firm. I’ll be continuing in the same practice area and locale, so I hope to keep some of my clients, current and past. While I’ve watched my colleagues make similar moves, I’m concerned about meeting my obligations to my clients and leaving the firm on a positive (and ethical) note.
Answer: Congratulations on the new opportunity! I’m glad to hear that you’re proactively prioritizing your ethical obligations as you head for the door. That’s the right move but not always the first thing on one’s mind.
How you notify your clients that you’re departing is a key component of your exit plan, and possibly the most important. It is an opportunity to inform them of your change in employment, to empower them to decide where their business lands (with you, the old firm or somewhere else), and to advise on how pending matters will be impacted.
The Client Decides
First, remember that the client is the gatekeeper to their business. The Model Rules and related comments make clear that a client has a right to terminate your relationship at any time.
Attorneys should never think of their clients as merchandise. The Missouri Supreme Court emphasized this point in its landmark case In the Matter of Cupples.
“They cannot be bought, sold, or traded. The attorney-client relationship is personal and confidential, and the client’s choice of attorneys in civil cases is near absolute.” In the Matter of Cupples, 952 S.W.2d 226, 234 (Mo. banc 1997)
Timing for Joint Letter Can Be Tough
Second, remember that you have a fiduciary duty to your firm and possibly even contractual obligations. Those conflict alarms going off in your head are rightfully concerning.
How do your fiduciary duties to the firm align with requirements to provide adequate and competent representation to your clients? Put another way, may you communicate your departure to your clients before giving notice to your firm? The opinions are split.
If your firm followed the prompts of ABA Formal Ethics Opinion 489, it should have written policies to help facilitate the departure of lawyers and the transition of clients. Nevertheless, ABA Formal Ethics Opinion 99-414 states that while it is ethically permissible for a departing lawyer to notify current clients before advising the firm of their intention to leave, it is ideal for such communication to come jointly from the firm and the departing lawyer.
Some jurisdictions establish a more bright-line rule requiring notice to the organization before communication with clients. For instance, Ohio Supreme Court Ethics Opinion 98-5 advised that a departure should be discussed between the firm and departing lawyer before the client is informed, and Florida Rule of Professional Conduct 4-5.8(c)(1) prohibits a departing lawyer from contacting clients until after they make a good faith effort to distribute a joint notice with the firm.
Similarly, the Pennsylvania and Philadelphia Joint Ethics Opinion 2007-300 points out that while the Model Rules are silent about notification timing, the prudent approach is to not notify clients until the firm has been informed, “absent circumstances that would compromise the interests of the client.” The opinion goes on: “The timing of notice should be fair and reasonable under all of the circumstances. From the perspective of notice to the old firm, the notice should be timed to enable the old firm to discharge its ethical obligations in a responsible and orderly way while facilitating client freedom of choice in the selection of counsel.”
Joint Letter Benefits
The communication to your clients must make it clear that they control their business and have alternatives for future representation. Again, see ABA Formal Opinion 99-414 for more details and suggestions on drafting the notice to clients.
For example, you should not urge them to pack up their business; rather, you should let diligence in their matters steer your willingness and ability to continue providing legal services in their direction. It must be clear that the client has the ultimate right to decide who will complete or continue their business.
While cooperation with your departing firm may not always be possible, a joint letter from the firm and you is the best practice. A joint letter can serve several purposes, including meeting your ethical obligations:
- It shows cooperation and reasonableness to the clients by both parties, emphasizing civil and professional business acumen.
- It creates a clear ending date for your old employment and a starting date for or at your new job, so any proper solicitation of clients can happen at the right time, i.e., after such notice.
- It gives notice of the change in employment and contact information to interested parties.
- It can serve as an important communication touchpoint for pending matters in an effort to not impact the clients’ interests due to your change in employment, regardless of how the client decides to proceed.
- A joint letter allows you to fairly and equitably balance your fiduciary duties to your old firm and client representation.
Be sure to examine your own jurisdiction’s rules, ethics opinions and case law, and look for any templates that may help you draft your notice.
Lastly, don’t forget to update your employment information with various entities, including attorney registration agencies or bar associations, courthouses, circuit clerks’ offices and e-filing services.
It sounds like you’re heading in the right direction. Preparation and planning can make your transition smoother, less stressful, and more civil for all involved.
Lead with your ethical obligations and a professional attitude and start your next chapter on the right page.
About the Illinois Supreme Court Commission on Professionalism
The Illinois Supreme Court Commission on Professionalism was established by the Illinois Supreme Court in 2005 under Supreme Court Rule 799(c) to foster increased civility, professionalism and inclusiveness among lawyers and judges in Illinois. By advancing the highest standards of conduct among lawyers and judges, the Commission works to better serve clients and society alike. For more information, visit 2Civility.org and follow @2CivilityOrg.
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