After an associate leaves an Illinois law firm, may the associate contact firm clients he worked with, tell them they can follow him, and when must the client be notified of the departure?

Plain-English summary

The opinion addresses three questions about a law firm associate's communications with clients when the associate leaves the firm: whether a departed associate may contact firm clients he had an attorney-client relationship with to report his departure; whether he may tell such a client it may continue with the firm or move the file to him; and whether an associate who formed an attorney-client relationship with a client must inform the client he is leaving.

On the first two questions, the opinion concludes the departed associate may make the contact. Because he had a "prior professional relationship" with these clients, Rule 7.3 does not bar him from contacting them to report the departure or solicit their continued business, and under Rule 7.1 the communication must not be false or misleading. Rule 5.6 bars the former firm from restricting the associate's right to practice (a no-solicitation restriction on the associate is generally improper), and a client may discharge a firm at any time and follow the associate if it chooses (Dowd & Dowd v. Gleason). The associate may tell the client of that freedom but must not mislead the client about its right to stay with the firm. The opinion expressly takes no position on whether such contact would constitute tortious interference or violate other substantive law, and stresses these two questions concern post-departure contact, not pre-departure solicitation while the associate still owes fiduciary duties to the firm.

On the third question, the opinion holds notice can be mandatory. Under Rule 1.4 (and Rule 1.16(d) on protecting client interests at termination), a duty to timely inform the client of the departure arises where the associate's involvement was of such degree or kind that the departure could reasonably affect the client's decisions about the representation or the means of accomplishing the client's objectives. Where the associate had little involvement, no meaningful client contact, or acted only in a subordinate role, notice is typically unnecessary. Notice ordinarily need not precede departure; pre-departure notice is required only where its absence would reasonably affect the means of accomplishing the client's objectives or prejudice the client's ability to make an informed decision. None of this licenses the associate to solicit firm clients for personal gain while still employed, which may breach fiduciary duties.

The opinion adds that where a duty to notify arises it governs both the firm and the associate (Rules 5.1 and 5.2; ABA Formal Op. 99-414), neither should obstruct the other's compliance, and joint notification, where feasible, can avoid duplicative or conflicting communications and charges of improper solicitation. If the firm does not provide adequate and timely notice, the associate must.

In practice

The opinion holds that a departed associate may contact firm clients he had an attorney-client relationship with, report his departure, and tell them they may stay with the firm or move the file to him, so long as the communication is not false or misleading (Rules 7.1, 7.3) and the firm has not imposed an improper practice restriction (Rule 5.6). It holds that notice of the departure is mandatory under Rule 1.4 where the associate's role was substantial enough that the departure could reasonably affect the client's decisions or the means of meeting the client's objectives, that ordinarily notice need not precede departure, and that the notice duty falls on both the firm and the associate (Rules 5.1, 5.2). The opinion expressly declines to address whether the conduct would create tort or other non-ethics liability, and notes pre-departure solicitation for personal gain may breach fiduciary duties owed the firm.

Common questions

Q: After I leave a firm, can I contact clients I worked with to tell them I've left?

A: Yes. The opinion concludes that because you had a prior professional relationship with those clients, Rule 7.3 does not bar the contact, and under Rule 7.1 the communication must not be false or misleading.

Q: Can I tell the client it may follow me instead of staying with the firm?

A: Yes. The opinion holds the client may discharge the firm at any time and choose new counsel, and you may inform the client of that right, but you must not mislead the client about its right to remain with the firm.

Q: When must the client be told about the associate's departure?

A: When the associate's involvement was of such degree or kind that the departure could reasonably affect the client's decisions or the means of accomplishing the client's objectives. Where the associate had little involvement or only a subordinate role, notice is typically unnecessary.

Q: Whose job is it to notify the client, the firm's or the associate's?

A: Both. The opinion holds the duty governs the firm and the associate, that joint notice is preferable where feasible, and that if the firm does not provide adequate and timely notice, the associate must.

Background and rules framework

The opinion interprets Illinois Rules 7.3 (solicitation; Model Rule 7.3) and 7.1 (communications about services; Model Rule 7.1) on post-departure contact, Rule 5.6 (restrictions on practice; Model Rule 5.6), Rule 1.4 (communication; Model Rule 1.4) and Rule 1.16(d) (protecting client interests on termination; Model Rule 1.16) on the duty to notify, and Rules 5.1 and 5.2 on the shared responsibility of the firm and the associate. It relies on Dowd & Dowd v. Gleason and ABA Formal Op. 99-414 for the line between permissible post-departure notice and impermissible pre-departure solicitation.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 7.3 (solicitation) / MR 7.3
• Illinois RPC 7.1 (communications about services) / MR 7.1
• Illinois RPC 5.6 (restrictions on right to practice) / MR 5.6
• Illinois RPC 1.4 (communication) / MR 1.4
• Illinois RPC 1.16(d) (protecting client interests on termination) / MR 1.16
• Illinois RPC 5.1, 5.2 (firm and subordinate-lawyer responsibilities)

Cases:

• Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460 (Ill. 1998), pretermination client solicitation breaches fiduciary duty; client's right to choose counsel
• Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365 (1st Dist. 2004), permissible departure notice that leaves representation to the client's choice

Other opinions cited:

• ABA Formal Op. 99-414 (1999), ethical obligations of a departing lawyer
• ISBA Opinion 86-16
• Arizona Bar Ethics Op. 10-02

See also

• NY State Bar Op. 1195: No Duty to Former Firm Clients Who Did Not Retain You
• NY State Bar Op. 411: Announcements to Former Firm Clients
• NY State Bar Op. 398: Client Files and a Withdrawing Partner

Source

• Landing page: https://www.isba.org/ethics/opinions/1214