If a lawyer is leaving his firm, he or she will obviously need to notify the law firm. When that notice must be made depends on a number of factors and is not always the same. Notice typically must be given to the law firm before any clients are told of the attorney’s departure. However, other factors should be considered when determining what is reasonable notice, including past practices surrounding withdrawals from the firm and the possibility of retribution from the firm that may cause harm to clients.    

Attorneys and their law firms owe fiduciary duties to their clients and must act in the clients’ best interest. Ethics rules delineate additional duties owed to clients. Below are some of those duties:

Communication

An attorney has a duty to keep a client informed.  If a lawyer’s departure from a firm may affect a client’s legal matter, the client must be informed of the departure. The facts or circumstances of an attorney’s departure from a law firm must not be misrepresented to the clients by either the departing attorney or the law firm. 

Confidentiality

Unless a client gives informed consent, a lawyer must maintain in confidence all information gained in the professional relationship with a client, except for disclosures that are impliedly authorized in order to carry out the representation. This primarily comes into play when a lawyer is in discussions with other law firms.

Competence

A lawyer is required to provide competent representation to a client. Competence requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.  A lawyer must not handle a matter which the lawyer knows or should know to be beyond the lawyer’s level of competence. A departing lawyer or the new law firm must be competent to handle a matter that leaves with the lawyer. On the other hand, if a matter stays with the law firm, then the law firm must ensure that it has the ability to competently represent the client.     

Diligence

Both a departing lawyer and the law firm have a duty to ensure that a client’s matter is properly handled.  The departing lawyer and law firm both must act with reasonable diligence and promptness, must not neglect a legal matter entrusted to them, and must continue handling a matter while an affected client is choosing between a departing lawyer and the law firm.  And during the transition, the departing lawyer and law firm both owe a duty of cooperation to each other in protection of the clients’ interests.   

Client files and Safekeeping of property

Lawyers and law firms also have a duty to safeguard a client’s property and funds that are in their possession. Upon the termination of representation, a lawyer or law firm must take all reasonably practicable steps to surrender papers and property to which a client is entitled. Even where a departing attorney and the law firm have unresolved disputes, the withholding or taking of client files is improper and may be to the detriment of clients, so must be approached with caution.

Conflicts

Lawyers moving between firms must ensure that there are no conflicts that would prevent them from practicing in the new firm. But how can a proper conflicts analysis be conducted without violating the duty to keep client information confidential?

The American Bar Association Committee on Ethics and Professional Responsibility has recognized that, in the lateral movement context, conflicts analysis cannot be completed without disclosure of certain client information. Disclosure of client information otherwise protected by Rule 1.6 for conflicts purposes when lawyers are moving between law firms. But there are limitations in scope and timing.

A lawyer contemplating a lateral move should not disclose conflicts information until the lawyer and prospective firm have moved past initial conversations and are engaged in substantive discussions regarding a possible new association. The timing of such disclosures will probably differ depending on the circumstances.

Notice to clients

To the extent that a lawyer’s departure from a law firm affects a client’s legal matters, the client must be informed of the attorney’s departure.  This duty of disclosure only applies to clients on whose active matters the departing attorney is responsible or plays a principal role.  Notice is typically not required where a departing lawyer’s connection with a client is so limited that the client will not be affected by the departure.  

As to the precise timing, manner, and method of the disclosure to the client, the ultimate consideration is the client’s best interest and is to be determined on a case-by-case basis.  Under any scenario, such notice should not be withheld too long.    

Notice can be provided by the departing lawyer, the departed law firm, or both jointly. Joint notice is preferred. Some jurisdictions require the departing lawyer and law firm must first attempt to agree on a joint notice.

If a departing attorney had significant contact with or actively represented a client on the client’s legal matters, the lawyer may communicate independently with the client, either in writing or orally, to advise the client of the attorney’s departure from the firm. Neither the firm nor the lawyer may lie or mislead a client with respect to the departure in an attempt to maintain the client relationship.

An appropriate communication may advise the client of the fact of the attorney’s departure, the attorney’s new location, the attorney’s willingness to provide legal services to the client, and the client’s right to select which attorney to handle the client’s future legal representation.  The departing attorney may also inform the client whether he or she will be able to continue the representation at his new law firm.