The Legal Professional

Rules for lawyers, law firms and legal service organizations

As do those who work in other professions and occupations, lawyers change practice settings looking for opportunities. Just as it is a thing of the past for our favorite athletes to retire from the same teams which drafted them, gone are the days when many lawyers with remain with the same firm or office throughout his or her career. There are several issues lawyers and law firms should think about before making a lateral move or hire.

Conflict Checking by Hiring Firm. The lateral move of a lawyer raises several ethical quandaries, foremost of which is the lawyer’s duty to protect a client’s confidential information. When a lawyer is contemplating changing firms it is normal for the new firm to want to know information about the lawyer’s clients and their matters.1 However, how much information the lawyer may disclose is subject to debate.

Notification of Clients by Departing Lawyer. Probably the most debated topic when dealing with a lawyer’s departure from a firm is when and how that lawyer can communicate with the firm’s clients about the lawyer’s impending departure from the firm. Many ethics commentators recommend that notification should occur after the lawyer gives notice to the firm.2 Moreover, it is recommended that the departure communication to the client should not actively solicit the client’s files or urge the client to remain with the departing lawyer, but that the initial notification to be jointly written by the firm and the departing lawyer.3

Duties of Former Firm and Departing Lawyer. When a lawyer leaves a law firm, both the lawyer and the law firm have an ethical responsibility to protect the clients’ interests and to ensure that matters are properly handled. Former firms must remember that ethical rules require that a lawyer who has been discharged surrender papers and property to which the client is entitled.4 Departing lawyers must consider legal obligations other than ethics rules that apply to his or her conduct when changing firms, as well as her fiduciary duties owed the former firm. The law of agency, partnership, property, contracts, and unfair competition impose obligations that are not addressed in the ethical rules.5

Prohibition against Noncompete Agreements. The ethical rules prohibit a firm or a lawyer from entering into an agreement of any kind that restricts a lawyer’s right to practice law.6 This prohibition of noncompete agreements, which frequently comes up when lawyers make lateral moves or are hired, has been widely upheld in formal ethics opinions.7