FIFTY WAYS TO LEAVE YOUR LAW FIRM
by
Roger Geller and Susan Strauss Weisberg
When a lawyer has decided to leave a firm,
ethical duties arise toward the clients. These duties may be overlooked in
the turmoil created by personal, professional or financial disputes between
the departing lawyer and the remaining members of the firm, all of whom have
fiduciary obligations to each other. See Meehan v. Shaughnessy, 404
Mass. 419 (1989). Lawyers who do not appropriately consider their clients’
rights when coping with the break-up of their relationship may violate the
rules governing their conduct. This article focuses on the responsibilities
owed to clients under the Massachusetts Rules of Professional Conduct by both
departing and remaining lawyers.
The
core principle is the client’s right to choose his or her own lawyer. See
Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 257 (1997);
Meehan v. Shaughnessy, supra at 431. This principle is reflected
in Mass. R. Prof. C. 1.16(a)(3), requiring a lawyer to withdraw from employment
if the lawyer is discharged by the client, and Mass. R. Prof. C. 5.6(a),
which prohibits lawyers from entering into partnership or employment agreements
that restrict their right to practice after termination of their relationship.
Comment 1 to Rule 5.6 explains that such non-competition agreements would
not only limit the professional autonomy of the lawyers but also would infringe
their clients’ freedom of choice.
The
departing lawyer must disclose the departure to the firm before any notice
is given to clients. Next, the departing lawyer and the firm must identify
the departing lawyer’s clients. All clients of the departing lawyer must be
notified promptly when the lawyer leaves the firm. This obligation of notice
applies whether the departing lawyer is a principal or an associate and extends
to all persons and entities with whom the departing lawyer had an active attorney-client
relationship in a matter pending at the time of the departure. See Meehan
v. Shaughnessy, supra at 436-438
When
both the departing lawyer and the firm want to keep a client, consistent with
the strong public interest in allowing clients to retain counsel of their
choice, the client must be advised clearly of the right to decide who will
continue the representation. Client notices in this situation should be mailed;
should make clear that the client has the right to decide who will complete
or continue the matter; and should be brief, dignified, and not disparaging.
While the notice may express the departing lawyer’s willingness to continue
responsibility for the matter, it should not urge the client to sever the
relationship with the firm or recommend the employment of the departing lawyer.
Meehan vs. Shaughnessy, supra at 437 n. 15, citing ABA Informal
Opinions 1457 (April 29, 1980) and 1466 (February 12, 1981).
The
recommended practice is to send a joint notice advising the client of the
right to be represented by whomever the client selects. Meehan v. Shaughnessy,
supra at 442 n. 16; see also, Pettingell v. Morrison, Mahoney & Miller,
supra at 257. If the departing lawyer and the firm cannot agree on
the language of a joint letter, separate letters may be sent. Note, however,
that departing lawyers who send preemptive, one-sided announcements will violate
their duty of good faith and loyalty to the remaining lawyers. Meehan v.
Shaughnessy, supra at 437. Care should also be exercised to avoid any
misrepresentations or misleading statements to the client about the client’s
rights.
If
the departing lawyer does not want to continue the representation, the client
should be notified of the change in the status of the lawyer and the firm,
informed that a remaining lawyer in the firm is willing to keep the case,
and advised that the client can chose whether to remain with the firm or seek
new counsel. In all cases of withdrawal from representation, the departing
lawyer must take reasonable steps to protect the client as required by Mass.
R. Prof. C. 1.16. If the case is in litigation, the lawyer must comply with
the applicable rules of the tribunal and secure any required permission before
withdrawing. Mass. R. Prof. C. 1.16(c). Remember that under the Rules of Civil
Procedure, the signing of a pleading filed in court constitutes an appearance
by the lawyer who signs it. Mass. R. Civ. P. 11(b)(1). To avoid ongoing
personal liability, the departing lawyer must file and perfect withdrawals
even in cases where a remaining firm lawyer also has an appearance.
If
a client chooses to be represented by new counsel in another firm, both the
departing and the remaining lawyers who represented that client must withdraw
in compliance with Mass. R. Prof. C. 1.16. In that event, the client’s file
must be made available promptly, any unearned retainers refunded, and care
taken to minimize any prejudice to the client. Mass. R. Prof. C. 1.15(b);
Mass. R. Prof. C. 1.16(d) and (e).
Finally,
the firm must not prevent the departing lawyer from honoring these obligations
or attempt to thwart any ongoing relationships between that lawyer and departing
clients. We frequently hear from departing lawyers, often younger associates,
that their employers have forbidden them to announce their departure, notify
their clients or opposing counsel, or take other appropriate measures to protect
the clients. Firm personnel have been instructed not to disclose the whereabouts
of former lawyers to departing clients or other callers. Remaining lawyers
have impermissibly withheld the files of departing clients as leverage in
disputes with departing lawyers over the division of fees or other lawyer-to-lawyer
issues.
All
of these practices constitute or can lead to ethical violations. Under Mass.
R. Prof. C. 5.2(a), a subordinate lawyer is bound by the disciplinary rules
even where he or she acts at the direction of another person. Departing associates
therefore must comply with the notice and withdrawal rules even if directed
otherwise by their superiors. On the other hand, principals and supervisory
lawyers must take reasonable measures to assure compliance with the disciplinary
rules by all lawyers and nonlawyer assistants in their firms or under their
supervision, and they are responsible for ethical violations of others if
they order or knowingly ratify the conduct at issue or fail to take reasonable
remedial measures. Mass. R. Prof. C. 5.1, 5.3.
When
a firm breaks up, both the lawyers’ failure to meet their own obligations
to clients and their obstruction of their colleagues’ fulfillment of those
obligations may have significant consequences to the clients, whose interests
should come first, as well as disciplinary consequences.
