When a lawyer leaves a firm, who notifies the clients, and can the firm impose a long notice period or block the departure?
ABA Formal Opinion 489: Notice When Lawyers Change Firms
Short answer: The opinion concludes that lawyers have the right to leave a firm and clients have the right to choose their counsel; a firm may request only a notice period as long as necessary for an orderly transition and may not use rigid notice periods, financial penalties, non-compete terms, or restrictions on firm resources to interfere with a client's choice of counsel or a lawyer's departure, and both the departing lawyer and the firm must promptly notify affected clients.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion addresses the obligations of a departing lawyer and the lawyer's firm when the lawyer changes firms, focusing on notice to clients and limits on what a firm may impose. It starts from two premises: "Lawyers have the right to leave a firm and practice at another firm," and "Clients are not property." Subject to conflicts, the client decides who will represent the matter going forward.
On notice, the opinion applies Rule 1.4: lawyers must timely communicate information clients need, which includes promptly notifying clients of a change in firm affiliation. The preferred approach is a joint communication from the firm and the departing lawyer to clients with whom the lawyer had significant contact, presenting the options to stay with the firm, move with the lawyer, or choose other counsel. But either the firm or the departing lawyer may notify clients, and if the parties cannot promptly agree on a joint notice, the firm cannot prohibit the lawyer from contacting firm clients. Neither side may make false or misleading statements under Rule 7.1.
On firm restrictions, the opinion applies Rule 5.6, which prohibits agreements restricting a lawyer's right to practice, and notes that "the ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements." A firm may request a reasonable notification period necessary to organize files and adjust staffing, but, as the opinion puts it, "firm notification requirements... 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," and they may not impose financial disincentives that function as restrictions on practice.
The opinion adds duties around files and resources. Under Rules 1.1, 1.3, 1.16(d), and 5.1, the firm and departing lawyer must coordinate so paper and electronic files are organized and current for transfer wherever the client directs, and a departing lawyer who does not keep a client must still protect that client's interests. Under Rule 1.6, the departing lawyer must return or delete confidential information not traveling with the client, though Rule 1.6(b)(7) permits retaining client identity and contact information to run conflicts checks at the new firm. During the interim period, the lawyer must retain access to adequate firm resources to continue representing clients competently.
In practice
Under this opinion, when a lawyer moves firms, affected clients must be promptly notified so they can choose who represents them, and the firm may not block or punish the departure. The opinion holds that a firm may request only the notice period needed for an orderly transition, that rigid notice periods and financial disincentives that interfere with client choice are improper, and that non-compete clauses are not allowed. It holds that either the lawyer or the firm may notify clients (a joint notice is preferred), that files must be organized for transfer wherever the client directs, and that the departing lawyer must return or delete confidential information not following the client while being allowed under Rule 1.6(b)(7) to retain identifying information for conflicts checks.
Common questions
Q: Can my firm stop me from telling my clients I'm leaving?
A: Per the opinion, no. Once the firm knows of the intended departure, it may not restrict the lawyer's prompt notification of clients; either the lawyer or the firm may notify, and a joint communication is preferred.
Q: Can a firm enforce a 90-day notice requirement or a non-compete to keep me from leaving?
A: The opinion says a firm may request only the notice period needed for an orderly transition; rigid notice periods and financial disincentives that interfere with client choice are improper, and non-competition clauses are not allowed under the ethics rules.
Q: Who decides whether the client stays with the firm or goes with me?
A: The opinion says the client decides. Clients are not property and may not be divided up; subject to conflicts, the client chooses who will handle the matter.
Q: What happens to client files and confidential information?
A: The opinion says files must be organized and current for transfer wherever the client directs, and the departing lawyer must return or delete confidential information not following the client, though Rule 1.6(b)(7) allows retaining client identity and contact information to check for conflicts at the new firm.
Background and rules framework
The opinion interprets Model Rule 1.4 (communication, including prompt notice of a firm change), Model Rule 5.6 (restrictions on the right to practice, including the bar on non-compete clauses), and Model Rule 7.1 (no false or misleading communications). It applies Model Rule 1.3 (diligence), Model Rule 1.6 (confidentiality, including 1.6(b)(7) and 1.6(c)), Model Rule 1.16(d) (protecting client interests on withdrawal), and Model Rule 5.1 (managerial responsibility for transition procedures).
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.4 (communication), 5.6 (restrictions on practice), 7.1 (communications)
- ABA Model Rule 1.3 (diligence), 1.6 (confidentiality; 1.6(b)(7), 1.6(c))
- ABA Model Rule 1.16(d) (withdrawal), 5.1 (managerial responsibility)
Other opinions cited:
- ABA Formal Op. 99-414 (1999): ethical obligations when a lawyer changes firms
- ABA Formal Op. 09-455 (2009): disclosure of conflicts information when lawyers move
See also
- ABA Formal Op. 487: Fee Division With Client's Prior Counsel
- TX Ethics Op. 699: Lawyer Departure Restrictions and Client Notice
- TX Ethics Op. 700: New Engagement With Followed Clients After Departure
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-489.pdf