Ethics Corner Article

Dear Ethics Committee:

I have been practicing for 10 years with the same firm and recently decided to move to a new firm that aligns more closely with my values. When I decided to do this, I immediately informed the managing partner but avoided talking about the move to anyone else in the firm, including my assistant. I had hoped to coordinate with the firm on notifying clients, some of whom will likely follow me when they learn on my planned departure. After initially being cooperative, the firm’s attitude changed to one of hostility after my assistant learned of my planned departure and decided to move with me. The managing partner told me today the firm was planning to notify the firm’s clients that the firm would continue to represent them despite my departure.  He also told me that any clients who decided to move to my new firm would have to pay the cost of copying and mailing their files. I always thought that both the firm and I owed a primary duty to the clients and that they could choose who they wanted to represent them.    Can the firm take these positions?

It is now axiomatic that many lawyers will change firms during their careers. As this has become a more common occurrence, the rancor and hostility that departing lawyers often faced in the past has largely subsided. However, as your inquiry suggests, this is not always the case. We will address the three issues you raised below.

Turning to the issue of choice letters, your inquiry points out one practice that is clearly barred by the rules of professional conduct. The firm’s suggestion that it will tell the affected clients that the firm would continue to represent them, without offering a choice, would violate the firm’s duty to the client. See ABA Formal Opinion 489 (2019)( “[C]lients must be notified promptly of a lawyer’s decision to change firms so that the client may decide whether to go with the departing lawyer or stay with the existing firm and have new counsel at the firm assigned.” Because the paramount duty of both the departing lawyer and the firm is to provide competent representation to the client, NHRPC 1.1 and 1.3, and to adequately communicate with the client about the status of the matter, NHRPC 1.4(a)(3), the firm has a duty not to mislead the client about his or her choice of representation. Of course, the firm may not offer to continue with the client if it no longer has the expertise to competently handle the matter.

The second issue presented, and one that is less well settled, is whether the firm has an obligation to negotiate in good faith the language of a joint choice letter. The ABA has made clear that the firm does not have to agree to the proposed language from the departing lawyer. See ABA Formal Opinion 489 (2019)( “The preferred next step is for the departing lawyer and the firm to agree upon a joint communication sent to the clients requesting that the clients elect who will continue representing them.”) However, neither the ABA nor this Committee has clearly rendered an opinion on whether there is a duty, at a minimum, to negotiate in good faith the language of the choice letter before deciding to send its own letter.

The Ethics Committee believes that a fair reading of our Rules of Professional Conduct require a firm to do so. Both the primary obligation to serve the client competently and  diligently,  to adequately communicate, and the duties of firm management under Rule 5.1(a), in the Committee’s view, require at least a good faith effort to send a single letter. This effort will further the primary goal of choice letters, which is to provide the client with clear and consistent information on the fact that this choice is the client’s alone and that the firm will cooperate with the departing lawyer should the client choose to follow that lawyer.

Turning to the last issue, the firm’s decision to provide copies of client files only upon payment of copying charges, no such condition can be imposed absent client agreement.  The New Hampshire Supreme Court has determined that the client’s file belongs to the client and, upon request, your current firm must provide the client with the “entire file.”  See Averill v. Cox, 145 N.H. 328, 339-40 (2000).  Those clients who choose to leave your current firm are entitled to their files and unless is it “clearly indicated” in the fee agreement or other written agreement that the client would pay the cost of copying, the firm must bear the expense of copying the file.  See id.  Even if the fee agreement provides for the client to pay copying costs, the firm cannot make delivery of the file contingent upon such payment.  See id.  Because the “client file” comprises the “entire file” maintained by the firm, the firm must provide all materials, including emails and materials maintained in electronic format and must manage any resulting burden imposed on the firm without charge to the client..  See New Hampshire Rules of Professional Conduct R. 1.0(n) (definition of “writing” includes electronic record of communication or representation); NH Ethics Committee Advisory Op. 2005-06/3 (January 2006) and Advisory Op. 2015-16/5 (client file is the client property and must be returned upon request). To the extent that the firm delays turning over client files, either to the client or to you as counsel after your departure, it would be risking violation of Rule 1.15(f) (requiring lawyer to promptly deliver any property that the client is entitled to receive) and Rule 1.16(d) (steps to protect client’s interest, such as surrendering papers and property to which the client is entitled).

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 the Ethics Committee Staff Liaison.