Jumping ship? Read this first.
Lawyers leave their firms (voluntarily) and go to others for a variety of reasons—relocation of a spouse, better offers, jerk bosses, bad coffee. And I suspect the worse the current situation (I mean, certain coffee must violate some Geneva Convention provision, right?), the quicker the lawyer may want to say goodbye and move on.
But, not so fast. They’ve got some important ethical obligations. Sorry to be the buzzkill. (I mean, I’m not really sorry. I’m always the buzzkill. I’m the one who reminds my colleagues that if we win the Powerball pool, we all can’t just retire the next day and leave our clients in the lurch, lest we face discipline. Yeah, that kind of buzzkill.)
The American Bar Association released a new formal opinion earlier this week spelling out everyone’s responsibilities when a lawyer makes a lateral move. Some random takeways, mostly for the departing lawyer:
Restrictive covenants (a.k.a. “noncompete clauses”) are not allowed in partnership or employment agreements, other than bona fide retirement agreements. (See SCR 20:5.6 in Wisconsin, ABA Model Rule 5.6 generally.) If you’re a lawyer trying to leave and your firm pulls out a restrictive covenant you signed years ago, well, you weren’t supposed to sign that and your employer wasn’t supposed to ask you to sign that. It’s not going to be enforceable. (It’s also something that could lead to discipline, but there is a whopping one reported case involving this Rule in Wisconsin, so your mileage may vary.)
Clients don’t belong to anyone. They have the right to choose their counsel, and that means (absent some independent conflict) they can stay with the old firm, follow the lawyer to her new firm, or say, you know what, I’m tired of the lot of you, and move on completely. This means they need notice that you’re moving, and some mechanism to let you and your old firm know what they want to do. The opinion suggests that a joint letter is a best practice. Granted, if there’s hostility or you otherwise can’t come to an agreement, then unilateral letters may be appropriate and neither party can prohibit the other from trying to solicit the client.
The firm can’t be the jerk and neither can the lawyer, absent exigent circumstances. The firm needs to give the departing lawyer appropriate resources to competently work during the transition period; cases don’t pause because lawyers gave their notice. This means that the firm can’t shut off the lawyer’s passwords, reassign their cases (thus exerting perhaps undue pressure on the client to stay with the firm), and have security escort them out. (Again, this assumes the job change is voluntary and not due to circumstances where an immediate departure is necessary to protect the firm, the clients, or the public.)
But the lawyer shouldn’t just go all Half Baked and walk out without notice either. They should provide reasonable notice (and, yes, “reasonable” is not really defined, as it never is, and is fact-specific); make sure files are organized for an orderly transition (either to the new firm or to another lawyer in the old firm); delete electronically stored client information from their cell phones and laptops, if the client will be staying and the electronics will be leaving; and provide some post-move cooperation with regard to final billing.
This opinion applies primarily to partner-level moves, not so much to junior attorneys who don’t have a portable book or primary responsibility for clients, but for them the calculus is a bit easier. Clients still should be provided with notice if an associate with a substantial role on their matter leaves (as, first, a client needs to be reasonably informed about the status of their matter as well as facts that they need to make an informed decision, see Model Rule 1.4; but, second, even if the fact of an associate leaving is not all that material to the status, it’s just the nice thing to do. You know how when you go to the grocery store and you go to Aisle 2 for the Pop Tarts and now Aisle 2 is toilet paper and it’s all discombobulating? It can be kind of like that for a client, if they call and suddenly learn that the associate who always asked after their puppies or their ailing grandparent had left three months earlier). The associate also still needs to cooperate and clean up their files and answer those last-minute texts about where they left the key to the filing cabinet and what, exactly, that scrawl on the draft bill says—and, yes, clients do still have the option of following the associate to their new firm, if the associate/new firm can competently handle the representation. It happens approximately once a century but it does happen.
To all of you who’ve had enough and are closing out 2019 by moving on, best of luck to you. May your new firm have one of those fancy custom espresso machines (or a Mr. Coffee brewing the knock-off “donut shop” stuff if that’s what you want, I don’t judge).
