By Christian A. Stiegemeyer, Director of Risk Management, The Bar Plan Foundation
Owing to the economic disruption created by the COVID-19 pandemic, many law firms are actively reevaluating the size and composition of their personnel, resulting in lay-offs and downsizing of attorneys. Whether finding yourself suddenly solo, or considering leaving a current position and branching out on your own or with another firm, the issue of notifying clients of your departure comes not just with a healthy dose of the Rules of Professional Conduct but also large measures of professionalism and courtesy between you and your prior firm.
Case law and the Rules of Professional Conduct control the manner in which a lawyer’s departure from a firm must be handled by the firm and the lawyer. As is quickly apparent from even a brief time researching lawyers duties involved with properly handling this situation, the potential ethics and malpractice risks involved are far reaching. What can make the discharge of these duties more difficult is the potential high emotions and perceived financial jeopardy of the lawyers involved.
The leading case in Missouri addressing this issue is In the Matter of Cupples, 952 S.W.2d 226 (Mo. 1997). Briefly, Cupples holds that when a lawyer leaves a law firm the duties of the law firm and the leaving lawyer are:
- To deal in good faith in winding up firm business;
- To inform the client of material changes in the representation and secure the client’s informed direction on the representation:
- To maintain or transfer the file according to the client’s directions and withdraw from cases where the client discharges them; and
- To make sure these tasks are completed in a competent and professional manner.
The best defense against such allegations is the “overt” act of the attorney inconsistent with the continuation of the attorney-client relationship, such as a letter to the soon-to-be-former client stating the relationship is concluded and that the lawyer will take no further action on the client’s behalf. In addition to their overt act concluding the relationship with the client, lawyers must also formally withdraw from all matters before any court or tribunal.
To limit malpractice liability and exposure related to this event, the cardinal rule is: Do not permit the client to reasonably believe (or be able to reasonably allege) that an on-going attorney-client relationship exists after the conclusion of the lawyer-leaving communication and decision making process. Many lawyers will argue (I know this because they have with me) that such “facts” as a court authorized withdrawal, retaining a new attorney, or receipt by the client of their original file make, in themselves, such an allegation unreasonable and terminate duties to the client. This would be WRONG. See, Brown v. Silvern, 45 P3d 749 (Colo.App.,2001), or Board of Managers of Eleventh Street Loftominium Ass’n v. McDonald Hopkins, LLC, Not Reported in N.E.3d, 2014 IL App (1st) 133912, 2014 WL 4537059 (Ill.App. 1 Dist. 2014).
Key Resources & References
- Leaving-Lawyer issues have been further explored in Missouri Informal Opinions addressing the application of numerous Missouri Rules of Professional Conduct in this setting, e.g., 4-1.1 Competence; 4-1.4 Communication; 4-1.7 Conflict of Interest; 4-1.10 Imputed Disqualification; 4-1.15 Safekeeping Property; 4-1.16 Declining or Terminating Representation; 4-1.22 File Retention; 4-7.3 & 4-7.4 Information About Legal Services; and, 4-8.4 Misconduct. Click on the link to view a representative sample of Leaving Lawyer Missouri Informal Opinions.
- The Missouri Legal Ethics Counsel Office drafted an article addressing leaving-lawyer issues.
- ABA Formal Opinion 489 – Obligations Related to Notice When Lawyers Change Firms (12/4/2019) provides a broad overview of the topic in discussing: 1) The Lawyers’ Duty to Communicate to the Client the Change in the Representation; 2) Clients Control of Choice of Lawyer; 3) The Obligations of Law Firm Management; 4) Ban on Unreasonable Notice Requirements; and 5) Prohibition on Denying Departing Lawyer Access to “Adequate Firm Resources” During Transition.
Lawyers with questions about the ethics of starting a new law practice, or leaving a current position, can contact our free Risk Management Hotline at 1-800-843-2277 x171.