When two law firms merge, must the firm get each client's consent, or at least notify clients, about the change?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A partner in a firm (Firm A) that was merging into another firm (Firm B), after which Firm A would cease to exist and its partners would join Firm B, asked whether the partners needed express client consent to the change, such as by having clients sign and return a form. The Committee set aside the contract and partnership-law questions and addressed only the ethical obligation.
The Committee found nothing in the Code directly on point but reasoned by analogy to DR 2-111, which on a sale of a law practice requires client notice and an opportunity to object, with consent inferred from a failure to object rather than express consent. Because a merger, in which the lawyers handling a matter typically continue to handle it, is far less disruptive than a sale, the Committee concluded that no express client consent is required in the merger context either.
The Committee held, however, that the absence of a consent requirement does not eliminate a duty to inform. Drawing on EC 7-8 and EC 9-2 (and the agent's common-law duty to keep the principal informed of material facts, now reflected in Model Rule 1.4), it concluded that where a merger would leave a client represented by a materially different firm, the client should be told. It illustrated the line: clients of a 300-lawyer firm absorbing a three-lawyer firm will rarely find the change material, but clients of the small firm, or clients affected by a merger of, say, a plaintiff's personal-injury firm with a corporate firm, may well find it material. The Committee added that the full DR 2-111 sale notice (right to take the file, fee terms, the buyer's background) is not required for a merger; the notice's content should vary with the circumstances and serve its purpose of letting the client understand and respond to a material development.
Currency note
This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The communication duty is now carried in New York Rule 1.4. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does a merging firm need each client's express consent to continue the matter?
A: No. The opinion concluded that, by analogy to the sale-of-practice rule (DR 2-111), no express consent is required for a merger, which is far less disruptive than a sale because the same lawyers typically keep handling the matter.
Q: Do clients have to be told about the merger at all?
A: Sometimes. The opinion concluded that where a merger would leave a client represented by a materially different firm, the client should be notified, as part of the lawyer's general duty to advise the client of material developments.
Q: When is a merger "material" to a client?
A: The opinion explained it depends on the circumstances: a large firm absorbing a few lawyers is rarely material to the large firm's clients, but clients of a small firm, or clients of firms with very different practices that merge, may well find the change material.
Q: Does the client need the same notice as on a sale of a law practice?
A: No. The opinion concluded the full DR 2-111 sale notice is not required; the content of merger notice should vary with the circumstances and serve the purpose of informing the client of a material development.
Background and rules framework
The opinion interpreted New York's then-governing DR 2-111 (sale of a law practice and client notice, the analog of Model Rule 1.17) and the communication duties reflected in EC 7-8 and EC 9-2 (now Model Rule 1.4), with DR 5-105(D) on imputation in the background. The analysis turned on whether a merger leaves a client with a materially different firm.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 2-111 (sale of a law practice; notice to clients; analog of Model Rule 1.17)
- DR 5-105(D) (imputed disqualification within a firm)
- EC 7-8, EC 9-2 (duty to inform the client of material developments; concern of Model Rule 1.4)
Cases:
- Spector v. Mermelstein, 361 F. Supp. 30 (S.D.N.Y. 1972), defining material facts a lawyer must disclose
Other opinions cited:
- N.Y. State Bar Opinion 555 (1984): duty to keep clients informed of material facts
See also
- ABA Formal Op. 489: Notice When Lawyers Change Firms
- ABA Formal Op. 468: Facilitating the Sale of a Law Practice
Source
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