Lawyers leave law firms every day. Some leave abruptly without any notice, while others get fired. Some lawyers leave after giving a two-week notice, and others provide the professional courtesy of a phasing out period. Money is a motivational factor, and some lawyers leave because of that. Others seek greater professional and personal enrichment.
Whatever the reasons for leaving a law firm, there’s a right way and wrong way of going about doing it. Each state has its own rules about how it should be done, but most law schools don’t teach third-year law students about how to leave a law firm. Many lawyers don’t even know that rules exist about leaving. It should be done carefully and of course, in compliance with all applicable rules.
Do You Have a Contract?
If you have a written employment contract, and you’re contemplating leaving a law firm, read it carefully every night before going to bed. Then, put it under your pillow. There could be be notice or departure requirements that you might need to fully comply with. Anything that might be construed as a written employment contract like a law firm handbook should also be considered. Of course, all of the duties of being an attorney must be satisfied during the transitional period. In the interim before you leave, represent your clients as if each one is the most important client that you have.
Do Clients Have Anything to Say About It?
Protection of client interests must be the paramount consideration for both the law firm and the attorney who is leaving it. Clients aren’t a law firm’s property, and they aren’t the departing lawyer’s property either. It’s the client who selected the law firm in the first place. It’s also the client’s decision on whether to stay with the existing law firm, go with the departing lawyer or find somebody new to pick up where matters were left off at.
Clients Who Should Receive Notice:
Certain clients should be notified of the fact that a lawyer will be leaving a law firm. Those would include clients who the lawyer is representing in active court matters, and those for whom the lawyer is providing a principal role in currently providing legal services at the time of the scheduled departure.
Who Does the Departing Lawyer Tell First?
The weight of authority tells departing lawyers to advise the law firm of their intention to leave the firm before telling clients. At that time an ethical obligation arises for both the law firm and the departing lawyer to advise clients who the lawyer had close professional working relationships with that the lawyer is leaving the law firm. It’s recommended that such notice be joint from both the law firm and the departing attorney. The notice should be neutral, informative and not misleading. Neither the law firm nor the departing attorney are ordinarily permitted to solicit the client in this notice.
When Can the Departing Lawyer Solicit Clients?
In some states, it’s only after the lawyer has left the law firm that he or she is ethically permitted to solicit clients. In others, solicitation can be made shortly after notification that the lawyer is leaving. The general rule is that solicitations can only be made to clients with whom the lawyer had a close personal or prior professional relationship. A prior professional relationship would be one wherein the attorney and client had sufficient contact to give the client an opportunity to evaluate the lawyer’s professional competency and skills.
There might be other law firm clients who the attorney might have done work for but never met. They’re more likely to be treated as members of the general public for solicitation purposes. Only information that is available to the general public might be used to solicit them. In all states, no disparagement of the law firm by the parties is permitted.
Who Keeps What?
If the client elects to stay with the lawyer who is leaving or left the law firm, there will be justifiable concern about what will happen to the case file. In most cases, with the permission of both the law firm and the client, it’s easy enough to make a digital copy of it. If the lawyer who is leaving the law firm will be taking the actual client file, the law firm should copy the file and forward it to the client pursuant to the client’s instructions along with a letter that concludes the law firm’s relationship with the client. It’s recommended that such issues on transfer of files and information be addressed by the law firm and the lawyer before his or her departure.
Proprietary Information and Conflicts of Interest
The lawyer is prohibited from taking any proprietary information from the law firm, but he or she can take items that the lawyer developed when practicing at the law firm. Assuming that the lawyer is intending on moving to a new law firm, he or she is allowed to disclose client information to the extent reasonably necessary to avoid conflicts of interest with the new law firm.
What if There is a Covenant Not to Compete?
A non-competition agreement between a law firm and one of its attorneys is usually unenforceable. This rule is intended to operate in the best interests of clients, so that they can be represented by the lawyer of their choice. It also relieves lawyers of burdensome restrictions on their professional mobility. If a lawyer wants to make an employment move, an employing law firm can’t get in his or her way. It can’t get in the way of clients who want to follow that lawyer either, nor can it withhold information from clients about the contact information for the lawyer.
Whenever there is a lawyer or law firm that’s in transition, there are two important points that must be kept in mind. The first is the client’s right to the attorney of his or her choice. The second is the duty that the lawyers of a law firm owe each other.
Change in law firms is inevitable, and the ethical obligation to notify appropriate clients and avoid actual or perceived consequences to them is of the utmost importance. Neither the law firm nor the departing lawyer can stand in the way of the ethical obligations to the client. Cooperation and sharing of information makes fulfilling the duty to clients and each other far easier. Every lawyer should refer to their state’s attorney ethics code when he or she is contemplating departure from a law firm.
Marketing Your New Law Firm
If you left a law firm to start your own, sooner or later you will likely be seeking new clients. One option could be via online marketing. If you are seeking to obtain clients online when they’re searching for an attorney, contact us today for a free, confidential consultation and we will look at ways you can optimize your firm’s Internet presence.