When a lawyer leaves one firm for another, can the lawyer tell clients before notifying the old firm, take the client files, and solicit those clients for the new firm?

Plain-English summary

A lawyer who is an associate or partner at Firm A is considering moving to Firm B. The opinion addresses three questions: (1) before notifying Firm A, may the lawyer tell the clients for whom the lawyer works of the intent to move; (2) after moving, may the lawyer take the files of clients for whom the lawyer has worked; and (3) after leaving, may the lawyer personally contact those former clients to solicit their business for Firm B.

On the first question, the opinion does not give a flat answer. A lawyer's fiduciary duty to clients may require advance notice so clients can decide whether to stay with Firm A, follow the lawyer to Firm B, or do something else. At the same time, the lawyer owes Firm A duties arising from their contractual, fiduciary, or agency relationship, which may require notice to Firm A before contacting its clients and may be violated if the lawyer tries to take clients while still being compensated by Firm A. Because the answer turns on specific facts, the opinion cannot say whether a duty of advance notice exists here. Regardless, under Oregon RPC 8.4(a)(3) the lawyer may not misrepresent the lawyer's status or intentions to others at Firm A.

On the second question, the opinion answers yes, qualified. Under Oregon RPC 1.15-1 and RPC 1.16(d), and assuming Firm A has no valid and enforceable lien, Firm A must promptly surrender client property to the lawyer when the clients so request, and must turn over the parts of the file a client reasonably needs to protect the client's interests.

On the third question, the opinion also answers yes, qualified. The Oregon Rules generally do not prohibit soliciting another lawyer's clients, but any solicitation must comply with Oregon RPC 7.1 (no false or misleading communications) and RPC 7.3 (limits on solicitation). The lawyer's fiduciary obligations to Firm A may still affect the ability to solicit at certain times.

In practice

The opinion holds that a departing lawyer's right to take client files turns on client direction and the absence of a valid firm lien: when clients request it, Firm A must promptly surrender client property and the parts of the file the client reasonably needs under RPC 1.15-1 and RPC 1.16(d). Soliciting former clients is generally permitted, subject to RPC 7.1 and RPC 7.3. The timing question, whether the lawyer may contact clients before telling Firm A, is fact-specific and governed by the lawyer's fiduciary, contractual, or agency duties to Firm A, with RPC 8.4(a)(3) barring any misrepresentation of the lawyer's status or intentions. The opinion also points both the lawyer and Firm A to RPC 5.6 (no improper restrictions on the right to practice) and to the duty not to prejudice clients during the transition.

Common questions

Q: Can I tell my clients I'm leaving before I tell my firm?

A: It depends. The opinion concludes the answer turns on the lawyer's fiduciary, contractual, or agency duties to the firm and the facts; the lawyer may owe the firm notice before contacting its clients, and may not misrepresent the lawyer's intentions to the firm under RPC 8.4(a)(3).

Q: Can I take my clients' files to my new firm?

A: Yes, qualified. The opinion concludes that, absent a valid and enforceable firm lien, the firm must promptly surrender client property and the file when the clients request the transfer.

Q: Can I solicit my former clients for my new firm?

A: Yes, qualified. The opinion concludes the rules generally do not prohibit soliciting another lawyer's clients, but the solicitation must comply with RPC 7.1 and RPC 7.3, and fiduciary duties to the old firm may limit timing.

Q: Can the old firm make clients pick up their files in person?

A: No. The opinion (following OSB Op. 2005-60) states the firm may not insist clients physically pick up files if it receives written directions to send them elsewhere.

Background and rules framework

The opinion interprets Oregon RPC 1.15-1 (safekeeping client property), RPC 1.16(d) (protecting client interests on termination), RPC 7.1 and RPC 7.3 (communications and solicitation), and RPC 8.4(a)(3) (dishonesty reflecting on fitness), and references RPC 5.6 (restrictions on the right to practice). These correspond to Model Rules 1.15, 1.16, 7.1, 7.3, 8.4, and 5.6. The opinion frames the departing lawyer's competing duties to clients and to the former firm.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.15-1 / Model Rule 1.15 (safekeeping property)
• Oregon RPC 1.16(d) / Model Rule 1.16 (declining or terminating representation)
• Oregon RPC 7.1 / Model Rule 7.1 (communications concerning a lawyer's services)
• Oregon RPC 7.3 / Model Rule 7.3 (solicitation of clients)
• Oregon RPC 8.4(a)(3) / Model Rule 8.4 (misconduct involving dishonesty)
• Oregon RPC 5.6 / Model Rule 5.6 (restrictions on the right to practice)

Cases:

• In re Smith, 315 Or 260, 843 P2d 449 (1992)
• In re Murdock, 328 Or 18, 968 P2d 1270 (1998)
• Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa 416, 393 A2d 1175 (1978)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-60 (client property when a lawyer leaves a firm)
• OSB Formal Ethics Op. No. 2017-192 (file copying costs and documents owed to clients)
• ABA Formal Ethics Op. No. 99-414 (ethical obligations when a lawyer changes firms)

See also

• OSB Ethics Op. 2005-60: Client Property When a Lawyer Leaves a Firm
• OSB Ethics Op. 2005-65: Listing Nonlawyer Personnel on Letterhead

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-70.pdf