“Lawyers suspended for copying client data, unilaterally notifying clients about new firm” —

• “Two Florida associates who hoped to take their clients with them when they left their personal injury law firm have been suspended from law practice for violating bar rules during that process.”
• “They formed their firm before leaving the Dan Newlin firm in January 2021. They did not give advance notice of their intent to resign, according to their conditional pleas (here and here) for consent judgment.”
• “The lawyers were accused of making digital copies of confidential client data while at the Dan Newlin firm. They were also accused of disabling a feature in the case management system that allowed the firm to mass email clients.”
• “After leaving the firm, the lawyers contacted clients they hoped to take with them without first approaching the Dan Newlin firm to negotiate a joint letter to the clients, as required by ethics rules, their pleas said.”

On the above, see also Michael Kennedy, Vermont’s Bar Counsel: “The story of the 2 Florida lawyers who were suspended for misconduct associated with leaving a law firm prompts me to share some observations” —

• “To lawyers who want to notify clients before (or without) informing the firm, answer me this: why?”
• “In my experience, the answer is most often ‘I want the clients to come with me.’ Trust me, I understand the answer. Really, I get it.”
• “But it’s not the answer that is problematic. It’s the thought process. It’s not too different than the child/spouse who decides to do something without telling their parents/spouse. And, usually, that’s a decision born of a realization that ‘I don’t think that telling them will work out too well for me.'”
• “To lawyers who learn that a lawyer is leaving and want to ban the lawyer from contacting clients, answer me this: why?”
• “In my experience, the answer is most often “I want the clients to stay here.” Trust me, I understand the answer. Really, I get it.”
• “But it’s not the answer that is problematic. It’s the thought process. It’s not too different from the spouse who asks a friend ‘please don’t ask my spouse if we’ll go with you.’ And, usually, that’s a question born of a realization that the spouse might say ‘yes, we’d love to.'”
• “Whatever feelings the departure engenders between departing lawyer and firm, professional responsibility includes putting those feelings aside and complying with the obligation to communicate to the client sufficient information to allow the client to make informed decisions about the representation.”

“Departing Ethically – 5 Things IP Lawyers and Law Firms Should Evaluate When Transitioning Firms” —

• “Lawyers and their Law Firms Don’t Own Clients…Both departing lawyers and their law firms must pay close attention and not get emotionally attached to the idea of ownership or control. While law firms cannot generally contract with their lawyers to prohibit solicitation, they may have an ownership interest in certain things—like trade secrets or confidential business records of the firm itself. Nevertheless, as noted below, departing lawyers may have overriding ethical obligations that require disclosure of certain materials (i.e., information to evaluate conflicts of interest).”
• “Since lawyers and law firms don’t own clients, and it is a client’s right to choose their counsel, how do we appropriately notify clients of their rights? The answer is seemingly simple—work together to notify them. However, that does not always go smoothly, as each side often desires to put a ‘spin’ on their contributions and the ability for the other to continue the representation.”
• “The test for communication does not rely on whether it would be reasonable for a client to depart with the lawyer, but just whether there was significant contact. As such, a Fortune 500 company could still require some notice as to the transition of a lawyer with whom they had regular contact, even if that lawyer would be entering into solo practice and might be unable to handle the client.”
• “Speaking of communication, lawyers owe fiduciary duties to their law firms. As such, they should avoid informing clients of a transition prior to notifying their law firms. Simply stated—it is not unethical to have separate conversations with clients regarding the departure, but lawyers should be mindful of their obligations and loyalty to their firm when having these discussions. In fact, these discussions should be about the clients right to transition, and not a sales opportunity.”
• “Conflicts (and Duty of Disclosure)… However, lawyers should carefully review the former client conflict and imputation rules under 37 CFR 11.109 and 11.110 to ensure they fully understand that simply terminating the representation or not transitioning the client does not always solve a problem when dealing with the same or substantially related matter.”
• “Moreover, while the Duty of Disclosure obligations under patent law are not usually imputed to others in the firm, it is important to carefully review disclosures by the client to others within the firm, and even departed lawyers, to make sure that disclosures to the USPTO are properly made.”
• “…law firms should not re-assign lawyers to client matters to avoid notification or prevent a client from leaving, though it may be prudent to introduce new lawyers to a client in case a client does stay, in order to have some level of continuity. More importantly, lawyers and law firms should not block access or hide files. This common tactic is used by firms (and sometimes the departing lawyer) to make the transition more difficult but has the added result of potentially harming clients.”