Risk Update

Lawyer Lateral Risk (Part 1) — New ABA Lateral Opinion

Apologies to those missing updates these past few weeks. I assure you all is well… Just a combination of my day job and too much Thanksgiving turkey. Definitely thankful for a few prods from readers missing their (“sometimes even fun”) risk fixes. Now, back once again. Starting us up this week, a look at some interesting updates on lateral rules and departure risk:

First, via Professor Alberto Bernabe: “New opinion by the ABA Standing Committee on Ethics addresses obligations related to lawyers changing firms” —

  • “The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 489 – Obligations Related to Notice When Lawyers Change Firms. You can read it here. Here is the summary.”
  • “Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest).”
  • “The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements.”
  • “Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm. Firms may require some period of advance notice of an intended departure. 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.”
  • “Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.”