What duties do a departing Colorado lawyer and the lawyer's firm owe clients when the lawyer leaves or the firm dissolves?

Plain-English summary

Opinion 116, revised in April 2025, addressed the ethical duties arising from a firm's dissolution or a lawyer's departure. It treated the client's interests as paramount over the business interests of either side. Clients did not belong to lawyers, and neither the firm nor the departing lawyer could impair the client's right to choose counsel, subject to limits such as competence, conflicts, law, and some insurance-contract provisions.

Both sides had responsibility for timely notice to affected clients, meaning clients whose active matters the departing lawyer was responsible for or principally handled. A sufficiently early joint notice was preferred so the client could choose the departing lawyer, the existing firm, or another lawyer. If joint notice was not practicable, unilateral notice became necessary and had to present the options impartially and fairly. Neither side could restrict access to client information or misstate the available choices.

Until the representation ended or withdrawal became effective, both the departing lawyer and the firm remained responsible for competent, diligent, and continuous handling of client matters. Counsel of record remained obligated to tribunals and agencies until withdrawal or substitution was effective. On termination, the lawyers had to protect the client's interests, including notice, time to obtain counsel, surrender of papers and property, and refund of unearned advance fees.

Client files could be removed only with client consent. Pending instructions, both sides needed reasonable access to protect the client, and each could copy a transferred file while preserving confidentiality. The opinion also required conflicts checks for the departing lawyer's new affiliation, rejected agreements that inhibited client choice or substantially discouraged competition, and applied Rule 8.4(c)'s prohibition on dishonesty, fraud, deceit, or misrepresentation to both the lawyer and the firm.

In practice

Under Opinion 116, an affected client had to receive timely, fair information about the departure and retain the choice of counsel. A joint notice was preferred, but either side had to give an impartial unilateral notice if cooperation failed. The matter, file, client property, and advance fees remained subject to the lawyers' duties throughout the transition.

The opinion also treated conflicts screening and candor as part of the departure process. Restrictions that substantially discouraged a lawyer from continuing to represent a client could violate Rule 5.6, while deceptive statements or concealment by either the departing lawyer or firm could violate Rule 8.4(c).

Common questions

Q: Who decided whether a client stayed with the firm or followed the departing lawyer?

A: The client. The opinion stated that clients did not belong to lawyers and that neither side could claim a possessory interest in them.

Q: Who had to notify affected clients?

A: Both the departing lawyer and responsible firm lawyers shared that responsibility. A timely joint notice was preferred; if one side would not cooperate, the other had to give fair unilateral notice.

Q: What information did the notice need to provide?

A: Enough information for an informed choice among the departing lawyer, the existing firm, or other counsel. A unilateral notice had to present those options impartially and fairly.

Q: Could the departing lawyer take client files?

A: Only with the client's consent. Pending instructions, both the departing lawyer and the firm needed reasonable access, and a transferred file could be copied by the other side while confidentiality was preserved.

Q: Could a firm agreement discourage the lawyer from representing clients after departure?

A: Not when it impermissibly restricted practice or substantially discouraged the lawyer from continuing the representation. The revised opinion relied on Rule 5.6 and the Colorado Supreme Court's decision in Johnson Family Law, P.C. v. Bursek.

Background and rules framework

The opinion applied Colorado RPC 1.1, 1.3, and 1.4 to competence, diligence, and client communication; Rules 1.15 and 1.16 to client funds, property, and termination; Rules 1.6, 1.9, and 1.10 to confidentiality and conflicts; Rules 7.1 and 7.3 to communications and solicitation; Rule 5.6 to restrictions on practice; and Rule 8.4(c) to dishonesty. It substantially adopted ABA Formal Opinion 99-414 and also referred to ABA Formal Opinion 19-489.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.1, 1.3, and 1.4 (competence, diligence, and communication)
• Colo. RPC 1.6, 1.9, and 1.10 (confidentiality and conflicts after a change in affiliation)
• Colo. RPC 1.15 and 1.16 (client property, funds, withdrawal, and termination)
• Colo. RPC 5.6, 7.1, 7.3, and 8.4(c) (practice restrictions, communications, solicitation, and dishonesty)

Cases:

• Olsen Brown v. City of Englewood, 889 P.2d 673 (Colo. 1995), client's right to terminate the attorney-client relationship
• Johnson Family Law, P.C. v. Bursek, 2024 CO 1, restrictions that substantially discourage continued representation
• People v. Bennett, 810 P.2d 661 (Colo. 1991), continuing attorney-client relationship from the client's reasonable perspective
• People v. Wilson, 953 P.2d 1292 (Colo. 1998), discipline involving an agreement restricting departing lawyers

Other opinions cited:

• ABA Formal Opinion 99-414: ethical obligations when a lawyer changes firms
• ABA Formal Opinion 19-489: notice when lawyers change firms
• CBA Formal Opinion 104: surrender of client files on termination

See also

• ABA Formal Op. 489: Notice When Lawyers Change Firms
• ABA Formal Op. 99-414: Ethical Obligations When Changing Firms
• CBA Formal Op. 104: Surrendering the Client File

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: Colorado Formal Ethics Opinion 116