When a partner leaves a firm, can the firm require the client's written instruction before handing the client's file to the departing partner?

Plain-English summary

When a partner leaves a firm, the question was whether the continuing firm could require instructions from the affected clients before releasing their files to the departing partner. The committee expressed no view on the legal questions between partners and confined itself to the ethics. Its anchor was the client's basic right to be represented by counsel of the client's own selection (ABA 10 (1926); N.Y. State 305 (1973)). Absent a special agreement, the committee reasoned, the clients of a partnership employ the firm entity, not a particular member, so the client may terminate the firm at any time, but a withdrawing partner cannot accomplish that termination unilaterally. Absent a court order or the client's express instructions, custody of the file properly reposes in the ongoing partnership.

Applying DR 9-102(B)(4), the committee said documents, correspondence between the client and persons other than the firm, and papers that are not the lawyer's own work product are the client's property and must, subject to any lien, be released to the client or the client's nominee (which may be any lawyer or firm) on the client's request. The rule recognizes only the client as qualified to make that request; it is immaterial that the withdrawing partner introduced or served the client. The committee concluded it would not be improper for the firm to require, for its own and the client's protection, that any instruction to deliver a file be in writing and signed by the client.

The committee added that although the client cannot demand the firm's own work product, if the client notifies the firm that the withdrawing partner is to supersede it, both the firm's duty to the client and professional courtesy to the departing partner call for letting the client or nominee inspect and copy the memoranda of law and other papers needed to protect the client's interest (EC 7-38; DR 7-101(A)(1); N.Y. County 613 (1973)).

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the duties on terminating representation and surrendering client property are now in Rules 1.16 and 1.15. 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 Treat this page as historical context, not current guidance.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: Who keeps the client file when a partner leaves the firm?

A: Under this opinion, absent a court order or the client's instructions, custody stays with the continuing partnership. The clients employ the firm entity, not the individual partner.

Q: Can the firm insist on a signed, written instruction before handing over a file?

A: Per the opinion, yes. The committee said it is not improper for the firm to require any instruction to deliver a file to the client's nominee to be in writing and signed by the client.

Q: Does it matter that the departing partner is the one who handled the client?

A: No. The committee said only the client may direct release of the file, and it is immaterial that the client was introduced to the firm or served by the withdrawing partner.

Background and rules framework

The opinion applied DR 9-102(B)(4) (delivery of client property), EC 5-12 (relations among partners), EC 7-38, and DR 7-101(A)(1) of the then-current New York Code. The current analogues are Rule 1.15 (safekeeping and delivery of client property) and Rule 1.16 (surrender of papers and property on termination). The committee treated client documents and non-work-product papers as client property while leaving the firm's work product outside that obligation.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation; surrender of file)
• MR 1.15 (safekeeping property)
• NY EC 5-12, EC 7-38; DR 7-101(A)(1); DR 9-102(B)(4)

Other opinions cited:

• ABA 10 (1926): the client's right to counsel of the client's own selection
• N.Y. State 305 (1973): cited with ABA 10 (1926) for the client's right to counsel of the client's own selection
• N.Y. County 613 (1973): access to work-product papers needed to protect the client

See also

• NY State Bar Op. 411: Announcements to former-firm clients
• NY State Bar Op. 422: Hiring a secretary from an adversary firm

Source

• Landing page: https://nysba.org/opinion-398/