May a departing Connecticut partner take active client files or former clients' original wills when the clients have not consented to transfer?
Apply this to your situation
This page answers the general question as of 2021. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A partner left a firm and sent ballot letters asking active clients to consent to transferring their files to the new firm. Some clients did not respond. The former firm also held former clients' original executed wills and asked whether the departing partner could take them without notice or consent.
Rule 1.15's duty to safeguard client property extends to client files and original wills. Rule 1.4(a)(3) requires keeping clients reasonably informed, which includes the lawyer's status and the file's location. Whether a departure is a significant development requiring notice depends in part on the firm's size, the client's sophistication, the matter, and the client's reasonable expectation about which lawyer would handle the work.
If a client directs transfer of an active file, that instruction controls and both the firm and departing lawyer must comply. Silence does not amount to consent, however, so neither side may assume that an unreturned ballot transfers the representation or file. The remaining firm's managers also must ensure that competent lawyers can continue active matters under Rules 5.1(a) and 1.1.
An original will belongs to the client and ordinarily remains with the firm until the client instructs otherwise. A transfer may be consistent with the client's reasonable expectations when the departing partner alone prepared the will and was specifically entrusted with it, but the firm must be satisfied that the departing lawyer will safeguard it, notify the former client, and receive no objection.
In practice
Under this opinion, the client controls an active file's transfer and silence does not supply consent. The firm and departing lawyer must communicate a departure when it is significant to the representation and follow the client's direction when one is given.
For an original will, the opinion starts with continued safekeeping by the firm. It permits a transfer without affirmative consent only in the described circumstances where the client's reasonable expectations manifestly support it, the departing lawyer will preserve it, the client receives notice, and the client does not object.
Common questions
Q: Does an unreturned ballot let the departing partner take an active file?
A: No. The Committee states that client silence cannot be construed as consent to transfer the representation and file.
Q: What happens when the client expressly directs a file transfer?
A: The client's direction controls, and both the former firm and departing lawyer must comply.
Q: Must clients be told that a lawyer has left the firm?
A: The duty depends on the circumstances and the client's reasonable expectations. When the client reasonably expects a particular lawyer to handle the matter, that lawyer's departure is a significant development requiring timely notice.
Q: May a departing partner take former clients' original wills without notice?
A: No. The opinion concludes that the departing partner is not entitled to take them without notice or client consent.
Q: Can an original will ever be transferred without affirmative consent?
A: Yes in the limited circumstances described by the opinion: the client's reasonable expectations manifestly support transfer, the departing partner will safeguard the will, the firm notifies the client, and the client does not object.
Q: What must the remaining firm do for active matters when no ballot is returned?
A: A partner with managerial or supervisory authority must ensure that the firm's remaining lawyers are capable and sufficiently competent to continue the representation.
Background and rules framework
Rule 5.1(a) requires managerial lawyers to establish policies reasonably assuring compliance with the Rules. The opinion connects that obligation to file and record-retention policies and to competent continuation of active matters after a departure.
Rules 1.15 and 1.4 govern safekeeping and communication. The Committee relies on earlier Connecticut opinions about client files, original wills, retention policies, and departure notices, together with ABA opinions addressing firm changes.
Citations and references
Connecticut Rules of Professional Conduct:
- Rules 1.1, 1.4(a)(3), 1.15, and 5.1(a)
Other opinions cited:
- Connecticut Informal Opinions 88-23, 97-14, 97-15, and 00-25, notice when a lawyer leaves a firm
- Connecticut Informal Opinion 98-23, safeguarding files and original wills
- Connecticut Informal Opinion 10-07, file-retention policies
- ABA Formal Opinion 99-414, ethical obligations when changing firms
- ABA Formal Opinion 489, notice when lawyers change firms
See also
- ABA Formal Op. 489: Notice when lawyers change firms
- OSB Op. 2005-60: Client property when a lawyer changes firms
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 21-01
What do the rules say today, for your facts?
This opinion is from 2021. Ezel checks the current Connecticut Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace