Notice to Clients When Changing Firms
Ethics Corner Article
Dear Ethics Committee:
I am in the process of changing law firms. I have already provided notice to my current firm but have not yet informed my clients of the change. What ethical obligations must I consider when providing notice to clients about my transition? Is there anything else I need to consider about my departure?
When a lawyer is transitioning from one firm to another, there are numerous logistical and ethical considerations to which the departing lawyer and the current firm must pay careful attention. Proper notification to the departing lawyer’s client is an important piece to the lawyer’s departure. However, it is equally important to consider and discuss with your firm the obligation of the firm to the client as well as the departing lawyer’s obligations to the firm.
This ethics corner is the first part of three ethics corners that will discuss issues that every lawyer and their firm need to consider when a lawyer decides to leave. This ethics corner focuses solely on a transitioning lawyer’s ethical obligations when providing notice to clients prior to or during such a transition.
These ethics rules, in combination, require prompt notification to current clients when a lawyer is changing law firm affiliations: NHRPC 1.3; NHRPC 1.4(a); ABA Formal Op. 489 at 2; see also ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 414 (1999) at 2); see also NHRPC 3.2.
Client notification of a lawyer’s impending departure can be accomplished unilaterally by the lawyer, the responsible members of the firm, or the lawyer and those members jointly. ABA Formal Op. 414 at 2. The departing lawyer and the firm should work together to agree on a joint communication to clients with whom the departing lawyer has had significant client contact. ABA Formal Op. 489 at 2; see also ABA Formal Op. 414 at 5 (“[T]he better course to protect clients’ interests is for the departing lawyer and her law firm to give joint notice of the lawyer’s impending departure to all clients for whom the lawyer has performed significant professional services while at the firm, or at least notice to the current clients.”). “Significant client contact” is defined to include contact that would result in a client identifying the departing lawyer, by name, as one of the attorneys representing the client. ABA Formal Op. 489 at 3.
While a joint notice is the preferable course, circumstances of the lawyer’s departure may dictate that such a notice is not feasible. A departing lawyer may unilaterally inform clients of the impending transition at or around the same time, but not before, that lawyer provides notice to the current firm. The lawyer should put forth a good faith effort with the current firm to agree on a joint communication before unilaterally informing clients. ABA Formal Op 489 at 2; see also ABA Formal Op. 414 at 5 (“When the departing lawyer reasonably anticipates that the firm will not cooperate on providing a joint notice, she herself must provide notice to those clients for whose active matters she currently is responsible or plays a principal role in the delivery of legal services.”). Notification of current clients by a departing lawyer does not constitute an impermissible solicitation under Rule 7.3(a), which limits contact with a prospective client for the purpose of obtaining professional employment. NHRPC 7.3(a); see also ABA Formal Op. 414 at 2-3. Moreover, a law firm may not restrict the departing lawyer’s prompt notification to clients, once the law firm has been notified or otherwise learns of the lawyer’s intended departure. ABA Formal Op. 489 at 2, 3.
Whatever the form of notification to clients, the notice should provide sufficient information enabling the clients to determine whether their legal work should remain with the firm, be transferred to the departing lawyer’s new firm, or be transferred to different counsel altogether. ABA Formal Op. 414 at 2; see also ABA Formal Op 489 at 2. Any initial in-person or written notice informing clients of the departing lawyer’s new affiliation should, at a minimum:
- Be limited to clients with active matters for which the lawyer has direct responsibility at the time of the notice;
- Not urge the client to sever the client’s relationship with the firm;
- Indicate the lawyer’s willingness and ability to continue responsibility for the matters upon which the lawyer currently is working;
- Make clear that the client has the ultimate right to decide who will complete or continue the matters
- Make clear that the client’s file is the client’s property, and that the client has the right to decide what happens with that file who takes possession of it; and
- Must not disparage the lawyer’s former firm. ABA Formal Op. 414 at 4.
The departing lawyer also may inform the client whether the representation can be continued at the new law firm. Id. If a client requests further information about the departing lawyer’s new firm, the lawyer should provide whatever is reasonably necessary to assist the client in making an informed decision about future representation (e.g., billing rates and a description of the resources available at the new firm to handle the client matter). ABA Formal Op. 414 at 5. The departing lawyer should confirm the client conversations in writing so as to memorialize the details of the communication and compliance with NHRPC 7.3 and 7.1. ABA Formal Op. 414 at 5.
Conclusion: If possible, a departing lawyer should work with the lawyer’s current firm to develop a joint communication to affected clients regarding the impending transition that enables the client to make an informed decision about future representation. If such a joint communication is not possible, the existing firm cannot prevent the departing lawyer from unilaterally notifying clients of the transition in a manner that is consistent with the N.H. Rules of Professional Conduct and the ABA Formal Opinions cited herein.
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 20, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing: Robin E. Knippers at firstname.lastname@example.org.