Risk Update

Lawyer Lateral Hiring Week (Part 3) — On Managing Matter Mobility, Lawyer Transitions and “Non-compete” Ethical Rules

Wise counsel when moving between firms” —

  • “Law firm managers have long known they can’t require attorneys to sign noncompete agreements when they join a firm. Even so, there have still been instances where firms have made it challenging for a lawyer trying to make a lateral move.”
  • “But a recent opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility makes it clear that any provision of an employment agreement that interferes with a client’s autonomy is never acceptable.”
  • “‘Firms may require some period of advance notice of an intended departure,’ Formal Opinion 489, handed down last month, reads. ‘…Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.'”
  • “One of the main points of the ethics opinion is the notice requirement a firm can impose on a lawyer who wishes to move to another firm. ‘The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession,’ the ethics committee wrote.”
  • “The opinion also advises firm leadership that they cannot withhold resources, such as email or staff, from a departing attorney during the transition period if doing so would prevent leaving lawyers from adequately representing their clients. Lawyers and their firms are encouraged to coordinate during a transition period in the best interests of any affected clients.”
  • “To that end, firms should have procedures in place that explain the process of transitioning a lawyer out of the practice and to another firm, the opinion advises. Most sophisticated firms have established such procedures, said Bruce Lithgow, a managing director of the Partner Practice Group of Major Lindsey & Africa.”
  • “A ‘race to the phone’ is not uncommon, Lithgow said, as both departing attorneys and their former firms will likely want to keep the client on their rolls. But Lithgow said he would advise leaving lawyers to come to their firm management with a prepared statement that can then be negotiated into a joint statement.”