Ezel / Ethics Opinions / NYSBA
NYSBA 2020-06-19

After a lawyer leaves a firm, must the lawyer keep representing the firm's clients who did not retain the lawyer's new firm, just because the old firm sent over their files?

Short answer: No. The opinion concludes that clients who did not retain the departing lawyer's new firm are former clients to whom the lawyer owes only the limited duties owed any former client; the old firm cannot unilaterally impose a new attorney-client relationship by sending files.
Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1195: No Duty to a Former Firm's Clients Who Did Not Retain the Departing Lawyer

Short answer: The opinion concludes that a lawyer who leaves a firm owes no duty to represent the firm's clients who have not retained the lawyer's new firm; those clients are former clients to whom only the limited former-client duties are owed.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A lawyer left a firm where the lawyer had handled various matters, including one in which the lawyer advised a client about a lien before departing, and started a new firm; several old-firm clients retained the new firm, but others did not. After the departure, the old firm began sending the lawyer files for matters the lawyer had handled. The lawyer returned them with notice of no representation, but the old firm re-sent them and told the affected clients in writing that the departed lawyer was now handling their matters. The lawyer asks whether any duty to those non-retaining clients remains.

The opinion treats clients of the former firm who have not retained the lawyer's new firm as the lawyer's former clients. A lawyer owes a former client only discrete duties, principally those in Rule 1.9: not to reveal the former client's confidential information protected by Rule 1.6, and not to take on a substantially related adverse matter. Rule 1.16(e) also requires steps to avoid prejudice at the end of a representation. Otherwise, the committee says, a lawyer's duty of care generally ends with the attorney-client relationship, including as to the client the lawyer had advised about the lien; absent retention of the new firm, the lawyer's remaining obligation is to make available documents or information in the lawyer's possession that could avoid prejudicing that client.

The committee notes that whether an attorney-client relationship exists is a question of law (Preamble ¶ 9), but observes that an unaffiliated third party cannot unilaterally impose such a relationship without the agreement of the lawyer and the client, citing the Restatement (Third) of the Law Governing Lawyers § 14. The committee declines to opine on the conduct of the old firm, since its charter limits it to the inquirer's own prospective conduct.

In practice

Under this opinion, a lawyer who leaves a firm is not obligated to continue representing the firm's clients who have not engaged the lawyer's new firm, even if the lawyer previously worked on their matters and even if the old firm forwards the files and tells the clients the lawyer is handling them. The opinion holds that such clients are former clients owed only the Rule 1.9 duties (confidentiality and no substantially related adverse representation) plus the obligation to make available documents in the lawyer's possession that could avoid prejudice. Per the opinion, a third party cannot create an attorney-client relationship without the agreement of both lawyer and client.

Common questions

Q: Must a departing lawyer keep representing old-firm clients who did not follow them?

A: No. Per the opinion, those clients are former clients owed only the limited duties any lawyer owes a former client, not the duties of an ongoing representation.

Q: Can the old firm make the lawyer responsible by sending over the files?

A: Per the opinion, no. A third party cannot unilaterally impose an attorney-client relationship without the agreement of the lawyer and the client.

Q: What does the lawyer still owe these former clients?

A: Per the opinion, the Rule 1.9 duties (protecting confidential information and not taking a substantially related adverse matter) and making available documents that could avoid prejudicing the client.

Background and rules framework

The opinion interprets New York Rule 1.9 (duties to former clients), Rule 1.6 (confidentiality), and Rule 1.16(e) (avoiding prejudice on termination), with reference to Preamble ¶ 9 on the formation of the attorney-client relationship. These correspond to ABA Model Rules 1.9, 1.6, and 1.16.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.9; 1.6; 1.16(e); Preamble ¶ 9
  • ABA Model Rules 1.9, 1.6, 1.16 (analogues)

Other authorities cited:

  • Restatement (Third) of the Law Governing Lawyers § 14 (formation of a client-lawyer relationship)

See also

Source