An Attorney is Leaving the Firm; Now What?
When a lawyer leaves a firm, both the departing lawyer and the firm must take reasonable steps to ensure the client’s interests are protected and the ethical duties of all attorneys are met. These duties generally include:
- SCR 3.130 (1.16), Duties of Termination of Representation
- SCR 3.130 (1.4), Duty of Communication
- SCR 3.130 (7.01 – 7.5, 8.3), Advertising Rules
We recommend reviewing Kentucky Bar Association Formal Ethics Opinion E-424 for a good overview of the duties to consider when a lawyer departs (or if you are the departing lawyer). A few items we want to highlight:
- Written Notice: Generally, if the departing lawyer has his or her own clients, we recommend sending a letter to those current clients explaining the departure. ABA Formal Opinion 99-414 (discussed in KBA E-424) recognizes the joint responsibility of notice to clients so this written notice can come from the firm, the departing attorney, or both. ABA notes that joint notice is preferable if it is practical.
- Do Not Disparage: All communication with clients should be respectful and should not disparage any other party.
- Client’s Right to Choose Counsel: The notice should explain to the client that they have the right to choose their lawyer and should not encourage the client to chose the firm or the lawyer. The letter may indicate the departing lawyer’s and/or the firm’s willingness and ability to continue representing the client.
- Client Indication of Choice: We also recommend closing the letter with check boxes for the client to indicate whether they want their file to remain with the firm or go with the departing lawyer.
- Notice to Former or Potential Clients: Notice to former clients is not required under the rules. However, a departing lawyer that wishes to reach out and notify former or potential clients of the move will want to review the advertising rules to ensure compliance.
Some other practical items to consider:
- Request case memos from the departing lawyer on files that are remaining with the firm. These should outline what has been done and upcoming deadlines.
- Discuss how the departing lawyer’s emails will be handled going forward (the firm will need to have someone monitoring to ensure deadlines are not missed).
- If the firm handles litigation, determine whether notices of appearances or substitutions should be filed in any cases.
- Notify your insurance carrier of any changes in personnel (legal professional liability carrier, health insurance and other benefits manager, etc.)
- If the split is not amicable, work with your IT vendor to ensure the firm’s client data is protected while also making sure the lawyer can meet their ethical obligations of representation and/or notice.
- Also work with IT to make sure complete client files are transferred in a usable format to the departing lawyer upon client request.
- Do not drag out transitions, especially if it is not a pleasant split. You want to prevent impacts on morale in the office, among other potential fallout.
- If feasible, consider an exit interview lunch to learn more about why they are leaving and consider what you may improve on in your firm.
If your firm is experiencing a transition and have any additional questions, please do not hesitate to reach out to us at 502-568-6100.