Risk Update

Risk “Issue” Week (Part 1) — Lawyer and Matter Mobility: Implications of New ABA Rules Removing Limits

Posted Dan Bressler

Thought it worthwhile to highlight several interesting issue-focused stories and articles that have been fermenting in my story library, waiting for their respective moments in the risk sun. Let’s start with and excellence piece by Amy Richardson (partner and co-chair of the legal ethics and malpractice group) and Hilary Gerzhoy (an associate) at Harris Wiltshire & Grannis: “ABA Rules For Departing Attys Set Unprecedented Limits” —

  • “ABA Opinion 489, titled ‘Obligations Related to Notice When Lawyers Change Firms,’ is bold: It states that fixed notice periods can be unenforceable, and that firms cannot prohibit a departing lawyer from contacting clients absent client consent.”
  • “ABA Opinion 489 is the first opinion to provide an unequivocal statement that a firm’s fixed notice period can be unenforceable. The opinion holds that the actual time a firm can hold a lawyer and prevent her from starting at a new firm is dictated solely by her, and her firm’s, compliance with their obligations to transition client matters. Where those obligations are satisfied prior to the expiration of a fixed notice period, the notice period is unenforceable.”
  • “For example, if a firm imposes a 30-day notice period, as most do, but the lawyer’s client files are up to date and the lawyer promises to help in the transition going forward — even if that transition is not complete — the firm cannot hold the lawyer for 30 days or dock the lawyer financially.”
  • “That is a significant change. The opinion states that ‘notification periods cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.’ In other words, fixed notice periods cannot do what many — perhaps most starkly those that exceed 30 days — were designed to do.”
  • “ABA Model Rule 5.6(a) prohibits, among other things, partnership agreements that restrict ‘the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.'”
  • “The opinion also holds that a firm cannot separate a departing lawyer from her clients while the lawyer remains at the firm without the client’s consent. This is because clients ‘are not property … [and subject] to conflicts of interest considerations, clients decide who will represent them going forward when a lawyer changes firm affiliation.’ A firm cannot, as many historically have, restaff a case to remove a departing lawyer without client consent.”
  • “However, ABA Opinion 489 states for the first time that the preference for a joint communication cannot preclude a departing lawyer from unilaterally communicating her move to her clients.[18] It states that: ‘In the event that a firm and departing lawyer cannot promptly agree on the terms of a joint letter, a law firm cannot prohibit the departing lawyer from soliciting firm clients.'”
  • “In other words, a firm cannot drag its feet on agreeing to a joint communication and simultaneously prevent the departing lawyer from notifying her client.”