Ezel / Ethics Opinions / OHBPC
OHBPC August 7, 2020

When a lawyer leaves a law firm, who notifies the clients, and what can the departing lawyer and the firm say about continued representation?

Short answer: The opinion concludes that both the departing lawyer and the firm have an ethical duty to ensure affected clients are informed of the departure, and they may notify clients jointly or separately. The notice may state the lawyer's or firm's willingness to continue, but both must accept the client's choice of counsel, and the firm cannot prevent the departing lawyer from notifying clients for whom that lawyer had principal responsibility.

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This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The Board addressed the duties that arise when a lawyer leaves a firm: whether a departing lawyer may notify clients of the departure, the new location, and a willingness to provide services, and whether the firm may notify clients of its desire to continue the representation.

The opinion concludes that a departing lawyer with principal responsibility for a client has a duty under Prof.Cond.R. 1.4(a)(3) to keep the client informed, which includes a change in the lawyer's firm affiliation. That lawyer is not only permitted but required to communicate the impending departure. The Board recommends the lawyer's notice be sent at the same time as, or after, the firm is told of the departure, not before. Because the departing lawyer often still represents the client when giving notice, the lawyer may state a willingness to continue and may directly solicit the client under Prof.Cond.R. 7.3(a)(2), since there is a prior professional relationship; the firm may likewise state its availability to continue.

Both the lawyer and the firm have an ethical obligation to ensure affected clients are informed, and the Board strongly encourages a jointly drafted notice that includes the lawyer's last day, new contact information, a request for the client's choice of counsel, and authorization to transfer the client's file and property under Prof.Cond.R. 1.15(d). If a joint notice is not feasible or the separation is not amicable, either party may send separate notices to clients for whom the departing lawyer is principally responsible; those notices must leave the choice of counsel to the client, must not disparage either party, and must not be false, misleading, or nonverifiable under Prof.Cond.R. 7.1. The firm may not prohibit the departing lawyer from sending a separate notice once it learns of the departure.

On timing, the notice should give the client enough time to decide on continued representation without harm; ideally it goes out before the lawyer departs, but in any event as soon as practicable. On choice of counsel, neither the firm nor the lawyer may imply the client belongs to them or interfere with the client's right to choose, and both must ensure pending matters are handled competently and diligently while the client decides (Prof.Cond.R. 1.1, 1.3, 1.16(d)).

In practice

Under this opinion, a departure triggers a shared duty: the departing lawyer must inform clients for whom the lawyer is principally responsible, and the firm shares the obligation to see that those clients are informed. The opinion holds that a joint notice is preferred and may bundle the client's choice-of-counsel decision with authorization to transfer the file under Prof.Cond.R. 1.15(d). Per the opinion, separate notices are permitted when a joint notice is not feasible, but must be neutral on choice of counsel and free of false or misleading statements under Prof.Cond.R. 7.1, and the firm may not block the departing lawyer's notice once it knows of the departure. The opinion expressly does not address a departing lawyer's legal or fiduciary duties to the former firm.

Common questions

Q: Who is responsible for telling clients a lawyer is leaving?

A: The opinion concludes both the departing lawyer and the firm share the duty. A lawyer with principal responsibility for a client is required under Prof.Cond.R. 1.4 to communicate the departure.

Q: Can the departing lawyer ask clients to come with them?

A: Yes. The opinion concludes the lawyer may state a willingness to continue and may directly solicit the client under Prof.Cond.R. 7.3(a)(2) because of the prior professional relationship; the firm may likewise offer to continue.

Q: Can the firm stop the departing lawyer from contacting clients?

A: No. The opinion concludes the firm may not prohibit the departing lawyer from sending a separate notice to affected clients after it learns of the impending departure.

Q: What should the notice say about choosing counsel?

A: The opinion concludes the notice must leave the choice of counsel solely to the client, must not pressure the client to sever ties with either party, and must not disparage either party or be false or misleading under Prof.Cond.R. 7.1.

Background and rules framework

The opinion interprets several Ohio rules: Prof.Cond.R. 1.4 (communication; Model Rule 1.4), 1.15(d) (safekeeping and prompt delivery of property; Model Rule 1.15), 1.16(d) (duties on termination; Model Rule 1.16), 7.3(a)(2) (direct solicitation of a person with a prior professional relationship; Model Rule 7.3), 7.1 (false or misleading communications; Model Rule 7.1), and the competence and diligence duties of 1.1 and 1.3. The opinion withdraws Adv. Op. 98-05.

Citations and references

Rules of Professional Conduct:

  • Ohio Prof.Cond.R. 1.4(a)(3) and cmt. [3] (Model Rule 1.4)
  • Ohio Prof.Cond.R. 1.15(d) (Model Rule 1.15)
  • Ohio Prof.Cond.R. 1.16(d) (Model Rule 1.16)
  • Ohio Prof.Cond.R. 7.3(a)(2) (Model Rule 7.3)
  • Ohio Prof.Cond.R. 7.1; 1.1; 1.3 (Model Rules 7.1, 1.1, 1.3)

Cases:

  • Fred Siegel Co. L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171 (1999), departing-lawyer duties to former firm (noted, not decided)

Other opinions cited:

  • ABA Formal Op. 489 (2019): obligations when lawyers change firms
  • ABA Formal Op. 99-414 (1999): ethical obligations when a lawyer leaves a firm
  • State Bar of Ariz. Formal Op. 10-02 (2010); Colo. Adv. Op. 116 (2007)
  • Ohio BPC Adv. Op. 98-05 (withdrawn by this opinion)

See also

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OPINION 2020-06
Issued August 7, 2020
Withdraws Adv. Op. 98-05

                          Lawyer Departing Law Firm

SYLLABUS: A law firm and a lawyer leaving the firm have an ethical obligation to
ensure that affected clients are informed of the lawyer’s departure. A law firm and
departing lawyer may jointly or separately notify affected clients of the lawyer’s
departure from the law firm. The notice may indicate the availability and willingness of
the lawyer or law firm to continue to provide legal services to the client. A lawyer and
the law firm must accept a client’s choice of counsel prompted by the departure of a
lawyer from the firm. A law firm cannot prevent a departing lawyer from notifying
affected clients for whom he or she has principal responsibility.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. JOHN W. WISE RICHARD A. DOVE
CHAIR DIRECTOR
PATRICIA A. WISE D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                OPINION 2020-06
                              Issued August 7, 2020
                             Withdraws Adv. Op. 98-05

                             Lawyer Departing Law Firm

SYLLABUS: A law firm and a lawyer leaving the firm have an ethical obligation to
ensure that affected clients are informed of the lawyer’s departure. A law firm and
departing lawyer may jointly or separately notify affected clients of the lawyer’s
departure from the law firm. The notice may indicate the availability and willingness of
the lawyer or law firm to continue to provide legal services to the client. A lawyer and
the law firm must accept a client’s choice of counsel prompted by the departure of a
lawyer from the firm. A law firm cannot prevent a departing lawyer from notifying
affected clients for whom he or she has principal responsibility.

QUESTIONS PRESENTED:

   1). Is it proper for a departing lawyer to notify clients of his or her departure from

a law firm, identify his or her new location of practice, and indicate a willingness to
provide future legal services?

   2). Is it proper for a law firm to notify clients of the departure of a lawyer from the

law firm and inform the clients of the law firm’s desire to provide continued
representation of the client?

APPLICABLE RULES: Prof.Cond.R. 1.1, 1.3, 1.4, 1.15, 1.16, 7.1, 7.3
Op. 2020-06 2

OPINION:

     The departure of a lawyer from a law firm gives rise to ethical duties for both the

departing lawyer and the remaining responsible lawyers of the law firm. A departing
lawyer with principal responsibility for a client has a duty to keep a client informed about
the status of a matter, including developments about the substance of the lawyer’s
representation.1 This duty includes a change in the lawyer’s affiliation with the law firm.
Prof.Cond.R. 1.4(a)(3), cmt. [3], ABA Op. 489 (2019). Consequently, a lawyer with
principal responsibility for affected clients is not only permitted, but required to
communicate his or her impending departure. Prof.Cond.R. 1.16(d). The notice serves as
critical information for the client to decide whether to remain as a client with the law firm,
follow the departing lawyer to his or her new firm, or seek new counsel altogether. The
Board recommends that a departing lawyer’s notice to affected clients be undertaken at
the same time or after, but not before, the law firm is informed of the lawyer’s impending
departure.2

Communication of Availability to Provide Legal Services

     Because the departing lawyer in most cases may be actively representing the

affected client at the time he or she gives notice of his or her departure, the lawyer may
indicate his or her willingness to continue the representation. Even if the representation
of the client terminates, the lawyer may directly solicit the client for employment since
the client had a prior professional relationship with the lawyer. Prof.Cond.R. 7.3(a)(2).
Likewise, a law firm can indicate in a separately delivered notice that it is available to
provide continued representation to the client. Id.

Jointly Delivered Notice

     Both the departing lawyer and the law firm have an ethical obligation to ensure

that the affected clients are informed about the pending departure of the lawyer. ABA
Op. 99-414 (1999). To satisfy this obligation, the Board strongly encourages departing

      1
        A lawyer with principal responsibility is a lawyer in the firm who has a major role in the delivery of the

legal services to the affected client.
2
This advisory opinion does not address the possible legal and fiduciary duties of a departing lawyer to his
or her former firm or the possibility of civil remedies. See e.g., Fred Siegel Co. L.P.A. v. Arter Hadden, 85 Ohio St.3d
171 (1999).
Op. 2020-06 3

lawyers and their law firms to work collaboratively to jointly draft and distribute a notice
to the affected clients and include relevant information concerning the last date of the
lawyer’s employment with the firm and the lawyer’s new address and contact
information. The joint notice may also include a formal request for the client to indicate
their choice of counsel and give authorization for the timely transfer of the client’s
property and file if the client chooses to continue his or her relationship with the
departing lawyer. Prof.Cond.R. 1.15(d). The Board also recommends that law firms
engage in advanced planning for the departure of firm lawyers. A plan will direct the
timing and content of a joint notice, ensure that the affected clients will receive pertinent
information about the representation, avoid prejudicing the client’s choice of counsel, and
fulfill the mutual ethical obligations of both the firm and the departing lawyer. See State
Bar of Ariz. Formal Op. 10-02 (2010).

   If a joint notice from the departing lawyer and law firm is neither feasible due to

timing nor desirable because the separation is unamicable, notices from either party
should be sent to those clients for whom the departing lawyer is principally responsible.
The separate notices should instruct the affected client that the decision concerning the
choice of counsel is within the sole direction of the client and should not encourage the
client to sever ties with either the firm or the lawyer or disparage either party. ABA
Formal Op. 99-414 (1999). The law firm and departing lawyer must also avoid making
false, misleading, or nonverifiable statements in their respective notices. Prof.Cond.R.
7.1. Finally, the law firm may not prohibit the departing lawyer from delivering a
separate notice to affected clients after it learns of the lawyer’s impending departure.
ABA Op. 489 (2019).

Timing of the Notice

   The timing of the notice sent either separately or jointly should give the client

enough time to make an informed decision as to continued representation without
causing harm to the client. “[I]nforming the client of the lawyer’s departure in a timely
manner is critical to allowing the client to decide who will represent him.” ABA Op. 99-
414 (1999). Prof.Cond.R. 1.4 suggests that the timing must be reasonable under the
circumstances and consistent with the client’s best interests. In an ideal situation, the
notice will be transmitted to the affected clients before the lawyer departs the law firm.
Recognizing that the severing of a relationship with a law firm can occur suddenly or
Op. 2020-06 4

without warning to either party the notice, preferably in writing, to the affected clients
should be delivered as soon as feasibly practicable to protect the interests of the clients.

Client’s Choice of Counsel

   It is improper for either the law firm or departing lawyer in a notice to infer or

imply that a client is the firm’s or lawyer’s client. The law firm and the lawyer ultimately
must accept the client’s decision to remain with the law firm or follow the departing
lawyer. Consequently, neither the law firm nor the lawyer may take action that interferes
with the client’s right to choose counsel. Colo. Adv. Op. 116 (2007). If the law firm cannot
continue the representation due to the unavailability of competent lawyers in a particular
legal specialty, or if the departing lawyer cannot carry out the representation due to a
non-waivable conflict at a new firm, the lawyer and law firm must work together to assist
the client in obtaining new counsel. Both the departing lawyer and the law firm have an
ethical duty to ensure that active matters pending while the client chooses counsel are
handled with the requisite competence and diligence and that all steps are taken to ensure
the withdrawal of representation by either party protects the client’s interests.
Prof.Cond.R. 1.1, 1.3, and 1.16(d).

CONCLUSION: A departing lawyer and his or her law firm have a mutual obligation
to keep the client informed about the status of the representation, including the
impending departure of a lawyer principally responsible for providing the client legal
services. The effective use of a jointly delivered notice to affected clients ensures that the
client receives critical information in order to make a choice of counsel. If a joint notice
is neither feasible or desirable, the firm and departing lawyer may send separate notices
to affected clients. The separate notices may indicate the willingness of the lawyer or law
firm to continue to provide legal services to the client. Lastly, while the delivery of a joint
notice is preferred, a law firm may not prohibit the departing lawyer from delivering a
notice to affected clients after it learns of the lawyer’s impending departure.

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