When a lawyer leaves a firm and some clients choose to follow, does the lawyer automatically represent them, and can the lawyer require new fee agreements?

Plain-English summary

An attorney worked for a law firm from August 2013 to December 2014, signing client fee agreements on the firm's behalf, then left for a new firm in January 2015. The old firm sent the attorney a cease-and-desist letter telling him not to contact former clients and to return client information, then wrote to the attorney's former clients giving them the choice to stay with the firm, follow the attorney, or retain other counsel. Four clients chose to follow the attorney. The committee was asked whether the attorney automatically had an attorney-client relationship with the four, whether he could represent them, and whether he could execute new fee agreements under his new firm's different fee structure.

On the first question, the committee concluded there was no automatic attorney-client relationship. The old firm's cease-and-desist letter drew a bright line establishing that any clients the attorney had worked with were the firm's clients, and the firm's letter to the clients made clear the choice was theirs. By choosing to retain the attorney, the clients ended their relationship with the firm and entered a new relationship with him.

On the second and third questions, the committee concluded the attorney could represent the four and could require new fee agreements. The relevant rule is Rule 1.9 (duties to former clients), whose Comment 4 addresses lawyers who leave a firm. The committee walked through Comment 4's competing considerations: protecting the former client's interest in loyalty (satisfied by the firm's letter giving the clients the choice), not precluding clients' reasonable choice of counsel (also satisfied), and not unreasonably hampering lawyers from forming new associations and taking new clients after leaving a firm. Under Rule 1.9, the committee concluded the attorney is free to associate with the clients who chose to follow him, may have them execute new fee agreements in line with the new firm's policy, and may represent them absent conflicts not raised in the request.

In practice

This opinion, approved April 24, 2015, applies North Dakota Rule of Professional Conduct 1.9 (duties to former clients) and its comments as they stood at that time. The committee held that when a lawyer leaves a firm, clients who choose to follow are former clients of the old firm rather than automatic clients of the lawyer, and the act of choosing to retain the lawyer creates a new attorney-client relationship. The committee held that, under Rule 1.9 and Comment 4, the lawyer may represent the clients who chose to follow him, may require them to execute new fee agreements consistent with the new firm's fee structure, and faces no conflict on the facts presented, with the qualification that conflicts not raised in the request were not addressed.

Common questions

Q: If clients follow me to my new firm, are they automatically my clients?

A: No. The committee concluded there is no automatic attorney-client relationship; the clients' decision to retain the lawyer is what creates a new relationship, after they end their relationship with the former firm.

Q: Can I represent clients who chose to follow me from my old firm?

A: Yes, absent conflicts not addressed in the opinion. The committee applied Rule 1.9 and its Comment 4, which is meant not to preclude clients' reasonable choice of counsel or to unreasonably hamper lawyers from forming new associations.

Q: Can I require those clients to sign new fee agreements?

A: Yes. The committee concluded the lawyer can have the clients execute new fee agreements in accordance with the new firm's fee policy.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 1.9 (Model Rule 1.9, duties to former clients), focusing on Comment 4's treatment of lawyers who end their association with a firm. Comment 4 balances three considerations: assuring the former client that loyalty is not compromised, not casting the rule so broadly as to deny other persons a reasonable choice of counsel, and not unreasonably hampering lawyers from forming new associations and taking on new clients after leaving a firm.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / N.D.R. Prof. Conduct 1.9 (duties to former clients; Comment 4, lawyers moving between firms)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

See also

• ABA Formal Op. 99-414: Lawyers Changing Firms
• ABA Formal Op. 489: Notice When Lawyers Change Firms
• AL Ethics Op. 1993-03: Lawyer Changing Firms

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_15-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 15-01

THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED

Attorney was employed with a law firm from August 2013 until December 2014. Attorney
signed a variety of fee agreements on behalf of the firm. The fee agreements were between the
law firm and the clients, but Attorney signed most of them as an attorney.

Attorney parted ways with the law firm in early January 2015. Attorney received a cease and
desist letter stating that he was not to contact any former clients and also to turn over any client
contact information in his possession.

Thereafter, the firm sent a letter to all of Attorney’s former clients, giving them the option to
continue with the firm, hire attorney, or retain another attorney. Four of these clients opted to
continue representation by Attorney.

The Ethics Committee has been asked to render its opinion on: (1) Whether Attorney
automatically has an attorney-client relationship with the four former clients? (2) Whether
Attorney can represent the four former clients? (3) Whether Attorney can execute new fee
agreements due to a different fee structure at his new firm?

OPINION

Based on the facts presented below, Attorney does not have an automatic attorney-client
relationship, but could represent the four clients who chose to follow Attorney to his new firm
with the requirement that new fee agreements be signed.

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Rule 1.9, N.D.R. Prof. Conduct: Duties to Former Client [4]
FACTS PRESENTED

Attorney performed various legal services for law firm from August 2013 through December
2014. During this time Attorney signed fee agreements with clients on behalf of law firm.
Attorney left law firm for new law firm in January 2015. Following Attorney’s departure, law
firm instructed Attorney by letter to “cease and desist” any contact with clients belonging to law
firm and to return any client information in his possession. Thereafter, law firm sent a letter to
Attorney’s former clients giving them a choice to remain with the law firm, follow Attorney, or
retain another attorney. Four of Attorney’s former clients chose to follow him to the new law
firm.

DISCUSSION

Based on the facts presented, Attorney does not have an attorney-client relationship with the four
former clients based on his employment with and the services he provided at the law firm. The
law firm drew a bright line between the Attorney and any clients that had contracted with the law
firm with its cease and desist letter to Attorney, making it clear any clients Attorney had worked
with were former clients. Moreover, the law firm’s letter to the clients informed them they
could continue with the firm, retain Attorney, or retain another attorney. By choosing to retain
Attorney, the clients chose to discontinue their relationship with the law firm and to enter a new
attorney-client relationship with Attorney.

Based on the facts presented, Attorney can represent the four former clients. The relevant rule
addressing former clients is Rule 1.9, N.D.R. Prof. Conduct: Duties to former client. Comments
4 and 7 address lawyers moving between firms. Comment four states: “When lawyers have been
associated within a firm but then end their association, the question of whether a lawyer should
undertake representation is more complicated. There are several competing considerations. First,
the client previously represented by the former firm must be reasonably assured that the principle
of loyalty to the client is not compromised.”

In this case, the letter the law firm sent to the clients establishes this duty of loyalty because it
clearly articulates that it is the client’s choice whether to continue with the law firm, follow
Attorney, or retain another attorney.

Comment 4 continues: “Second, the rule should not be so broadly cast as to preclude other
persons from having reasonable choice of legal counsel.” This again is accomplished with the
law firm’s letter indicating the client has absolute control over the client’s choice of
representation.

Next, Comment 4 provides: “Third, the rule should not unreasonably hamper lawyers from
forming new associations and taking on new clients after having left a previous association.”
Here, is where the Attorney receives clarification of his ability to engage the four clients who
wish to remain under his representation. The rule states an understanding that many lawyers are
members of law firms and that many lawyers will be members of several firms throughout their
legal careers. It would stifle an attorney’s ability or freedom to move about the legal community
and follow opportunities for advancement if every client ever served by a former law firm were
automatically disqualified from his or her representation.

Therefore, pursuant to Rule 1.9, N.D.R. Prof. Conduct the Attorney is free to associate with
Attorney’s former clients left behind at the law firm, and to enter new fee arrangements and
contracts independent of the law firm.

Based on the facts presented, the Attorney can accept the four clients, have them execute new fee
agreements in accordance with the new law firm’s policy, and proceed to represent them with no
conflict.

CONCLUSION

Attorney does not automatically have an attorney-client relationship with clients he represented
when employed by his former law firm. Absent conflicts not raised or addressed in this opinion,
the former clients can retain Attorney to represent them and Attorney can require the clients
execute new fee agreements in accordance with Attorney’s new law firm’s policy.

This opinion was drafted by Ward K. Johnson, [JI and was unanimously approved by the Ethics
Committee on the 24" day of April, 2015.

This opinion is provided under Rule 1.2(B), North Dakota Rules for Lawyer Discipline, which
states:

A lawyer who acts with good faith and reasonable reliance on a written opinion or
advisory letter of the ethics committee of the association is not subject to sanction
for violation of the North Dakota Rules of Professional Conduct as to the conduct
that is the subject of the opinion or advisory letter.