WHEN LAWYERS CHANGE FIRMS
With the changing legal landscape and demographics of the legal market, law firm changes happen. Garcia Hong Law has counseled lawyers who are preparing to leave a law firm and represented departing lawyers who face litigation from their prior law firms. Your Garcia Hong Law attorney will help you transition smoothly and avoid unnecessary disputes and litigation.
There are ethical requirements when a lawyer leaves a law firm – both for the lawyer and the firm. The primary focus must be the client’s best interests, including keeping them informed and not prejudiced by their lawyer and law firm’s conduct.
NOTICE TO YOUR FIRM AND CLIENTS
California Rule of Professional Conduct Rule 1.4 provides that a lawyer owes a duty to their client to keep them informed about significant developments relating to the representation. Rule 1.16 provides that a lawyer may not terminate an attorney-client relationship until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the clients, including giving the client enough notice to retain other counsel.
The American Bar Association Formal Opinion 99-414 (1999) and the State Bar of California Formal Opinion 1985-86 are good starting points for managing notice and communication about a lawyer’s departure to clients. Both formal opinions offer the following suggestions:
- Provide notice to the firm before announcing it to clients
- Send joint written notice by the firm and the departing lawyer
- Provide in-person or timely written notice of the departing lawyer’s new contact information
- Advise clients they have the “right to choose” whether to stay with the existing law firm, follow the departing lawyer to their new affiliation, or hire another lawyer
- Avoid any disparaging statements about the prior law firm
Once a lawyer leaves their firm, it’s generally accepted that they can solicit clients whom they had a personal or professional relationship with.
FIRM'S PROPERTY VS. CLIENT FILES
Generally, files are the property of the client, not the law firm. Taking client lists, practice forms and templates, or computer files may often invoke property and trade secret laws.
When taking files, a departing lawyer should consider:
- Are the documents considered “work product”?
- Were the documents created for a general use?
- Are the documents in the public domain, e.g. pleadings, letters to third parties?
The American Bar Association Formal Opinion 99-414 (1999) suggests the departing lawyer should get the law firm’s consent to take documents that are not work product or publicly available. Many law firms have software or will hire a forensic expert to detect and look for suspicious downloading.
The San Diego-based attorneys at Garcia Hong Law have represented lawyers and their staff who have been sued by their prior law firms. Breaking up can be acrimonious and distrust often clouds judgment, including the negative effect on the lawyer and the law firm’s clients. It is important to work with experienced counsel on recommended steps when leaving a law firm. Call us at (858) 255-0163 or email us at [email protected] to speak with an experienced attorney for help with leaving your law firm.