Can a Kentucky lawyer who is leaving a firm contact the clients he personally represented to tell them about his new practice and their right to choose counsel?
Apply this to your situation
This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Kentucky Rules of Professional Conduct, with citations.
Plain-English summary
The Committee was asked whether a lawyer who intends to withdraw or has withdrawn from a firm may communicate by telephone or in person with clients he personally represented, to tell them he is opening a new practice and to advise them they have a right to choose between the former firm and the lawyer's new firm. It answered with a qualified yes.
The opinion concluded that the general proscription against solicitation does not bar a withdrawing lawyer from informing firm clients he personally represented before his separation; such direct contact falls within the exception for persons with whom the lawyer has had a prior professional relationship, citing DR 2-104 and Model Rule 7.3. It added that simple announcements of new associations are plainly appropriate, and that ethics opinions from other jurisdictions, including New York City Opinion 80-65, have approved telephone or personal communications informing such clients of the new practice and their right to choose counsel.
The opinion also noted that some contacts have been viewed as tortious interference with the former firm's contracts, citing the Pennsylvania decision Adler, Barish, Daniels, Levin & Creskoff v. Epstein (and commentary criticizing it), but it stated that whether specific conduct may be actionable is a question of law the Committee cannot answer.
Currency note
This opinion was issued in 1987 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer leaving a firm call or meet the clients he handled to tell them he is moving?
A: Qualified yes. The opinion concluded such contact with clients the lawyer personally represented falls within the prior-professional-relationship exception to the anti-solicitation rule, citing DR 2-104 and Model Rule 7.3.
Q: Can the departing lawyer tell those clients they may choose between the old firm and the new one?
A: Yes. The opinion approved informing clients of the lawyer's new practice and their right to choose between the former firm and the new firm, consistent with opinions from other jurisdictions such as New York City Opinion 80-65.
Q: Does the opinion address whether such contact is tortious interference?
A: No. The opinion noted that some courts have treated such contacts as tortious interference, but it stated that whether specific conduct is actionable is a question of law the Committee cannot answer.
Background and rules framework
The opinion interprets DR 2-104 of the former Code of Professional Responsibility, which limits solicitation but excepts persons with whom the lawyer has had a prior professional relationship, and reads it together with Model Rule 7.3, the solicitation rule the Kentucky Bar later adopted. The analysis turns on the departing lawyer's existing professional relationship with the clients he personally represented.
Citations and references
Rules of Professional Conduct:
- DR 2-104 (former Code; solicitation, prior-relationship exception)
- MR 7.3 (solicitation of clients)
Cases:
- Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1978), departing-lawyer contacts as tortious interference
Other opinions cited:
- Association of the Bar of the City of New York Op. 80-65 (1980); ABA/BNA Lawyers' Manual on Professional Conduct § 91:901; 1 ALR 4th 1164; G. Hazard and W. Hodes, The Law of Lawyering 526-27 (1985)
See also
- ABA Formal Op. 489: Notice When Lawyers Change Firms
- ABA Formal Op. 99-414: Lawyers Changing Firms
- AL Ethics Op. 1991-06: Clients When a Lawyer Leaves a Firm
Source
- Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
- Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-317.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-317
Issued: January 1987
This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.
Question:
May an attorney, who intends to withdraw or has withdrawn from a law firm,
communicate by telephone or in person with clients with whom he personally has had a
professional relationship to inform them that he is establishing a new practice, and advise
those clients that they have a right to choose between the former firm and the attorney's
new firm with respect to legal representation?
Answer:
Qualified yes.
References:
DR 2-104; Model Rule 7.3; Association of the Bar of the City of New York 80-65 (1980);
Adler, Barish, Daniels, Levin & Sreskoff v. Epstein, 393 A.2d 1175 (Pa. 1978); 1 ALR
4th 1164.
OPINION
The general proscription against solicitation does not preclude a withdrawing lawyer from
informing clients of the firm whom he or she personally represented prior to his or her separation from a
firm. Such direct contact falls within the exception for persons with whom the lawyer has had a prior
professional relationship. DR 2-104 and Model Rule 7.3. ABA/BNA Lawyer's Manual on Professional
Conduct § 91:901.
It is clear that simple announcements of new associations are appropriate. 1 ALR 4th 1164-1165.
In addition, ethics opinions from other jurisdictions have approved of telephone or personal
communications with clients, with whom the lawyer has had a professional relationship, to inform them
of the lawyer's new practice and their right to choose between the former firm and the lawyer's new firm
with respect to legal representation. See, e.g., Association of the Bar of the City of New York Opinion
80-65 (1980).
It should be noted that some contacts have been viewed as a tortious interference with the former
firm's contracts in at least one reported opinion. See Adler, Barish v. Epstein, 393 A.2d 1175 (Pa. 1978),
1 ALR 4th 1164. But see G. Hazard and W. Hodes, The Law of Lawyering 526-27 (1985) (criticizing
the Adler, Barish opinion). Whether specific conduct or a specific course of conduct may be actionable
is a question of law the Committee cannot answer.
Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar
Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The
Rule provides that formal opinions are advisory only.
Get today's answer for your situation
You just read a 1987 opinion on this question. Ezel checks the current Kentucky Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.