The Risk Manager, Spring 2018

The Philadelphia Bar Association Professional Guidance Committee in Opinion 2013-4 (Sept. 2013) was asked to consider the situation where a departed lawyer’s email account at the firm was set up to reply that the lawyer was no longer with the firm. The firm read the emails and forwarded them to the departed lawyer if they related to business the lawyer took with him. The committee found this procedure appropriate based on the firm’s duty to protect the interest of clients during a transition, to assure continuity in work being performed for clients, and to assure that the firm takes reasonable steps to protect clients’ interest when the firm withdraws.

The departed lawyer asked that the firm just “bounce back” the emails to sender without reading them. The committee ruled this was not appropriate as the firm must look at the emails to determine its responsibilities to current clients, former clients, and clients going with the departing lawyer.

The committee advised the firm to immediately provide to email inquiring clients and former clients sufficient information that would allow them to make prompt contact with the ex-partner prior to offering the firm’s services as an alternative.

Hinshaw in its December 2013 issue of “The Lawyers’ Lawyer Newsletter” reviewed the opinion in the article E-Mail Communications Between Clients and a Departing Attorney and made this good point not covered by the committee:

[T]he Opinion requires modification in one respect, namely that once a client has indicated its desire that the departing lawyer and his or her new firm should take over the representation, from that moment forward the law firm should have no interest in the contents of emails from or relating to that client, and indeed would be violating the client’s attorney-client privilege with their “new” lawyer in continuing to review the contents of emails sent to the departing lawyer’s account. Until that point is reached, however, the Opinion correctly gives the firm the obligation as well as the right to review emails sent to the departing lawyer’s account.