While several states have ethics opinions with guidelines on managing the process, Virginia has now become the second jurisdiction in the country to add such guidelines to its actual ethics rules — in particular covering how and when lawyers and firms must give notice to the affected clients.
New Virginia Rule 5.8
The new Rule 5.8 of the Virginia Rules of Professional Conduct is significant in mandating that neither the the firm nor the departing lawyer may unilaterally contact clients to inform them of the lawyer’s impending departure before at least attempting to negotiate a joint communication.
Only if the firm and the departing lawyer cannot agree on the form of a joint communication may they take unilateral action to inform the client and solicit the client’s choice to either remain with the firm, go with the departing lawyer or choose “none of the above.” In any event, notice to the client must be timely.
If the client does not express a choice, the new Virginia rule provides that by default, the client remains a client of the firm — at least until the client gives notice to the contrary.
Similar rules apply when a firm dissolves, except that a client of a dissolving firm who fails to express a choice remains a client of the lawyer who was primarily responsible for that client.
Florida rule on notifying clients of lawyer departures
Florida is the only other state to regulate lawyer departure notification by means of an ethics rule. Rule 4-5.8 of the Florida Rules of Professional Conduct provides that a departing lawyer may not unilaterally contact clients of the firm to notify them and solicit representation unless the lawyer has approached the firm and attempted to negotiate a joint communication. Only if bona fide negotiations are unsuccessful may the lawyer notify clients unilaterally.
Therefore, in contrast to Virginia’s Rule 5.8, Florida restricts only the departing lawyer from making a unilateral reach-out to clients. The law firm remains free to do so — clearly a disequilibrium between the respective rights of the departing lawyer and the firm.
Ethics opinions fill in state rule gaps
Many of the jurisdictions that do not address the subject of lawyer departure and client notification by rule do so in ethics opinions issued by state bar associations or other ethics regulators.
An advisory opinion of Ohio’s Board of Professional Conduct, for example, says that clients can be notified separately or jointly — but only after the lawyer has notified the firm of the lawyer’s intent to leave. In all events, an unseemly “client war” that degrades the profession should be avoided, the opinion says. Other opinions are from California and Pennsylvania.
Watch for more rules
Stay tuned: as the legal profession becomes increasingly regulated, more states will likely take the direction that Florida and Virginia have.