When a lawyer leaves a firm and will not keep practicing, who must notify the clients she handled, and is the firm's failure to pay her wages an ethics issue?

Plain-English summary

An associate resigned from a firm where client contracts named the firm as counsel. The firm said it would notify all clients that she had left and that they could retain another firm or have another firm lawyer continue. Two months later she received a motion to be relieved that would leave her as attorney of record, and an opposing lawyer contacted her saying the firm had told him she was handling a case. She had taken no files, was not practicing law, and had not been paid her last paycheck. She asked about her responsibilities to the clients, the firm's responsibilities, and the firm's responsibility for the unpaid wages.

The committee grounded the client-notification answer in Rule 1.4, which requires keeping clients reasonably informed; clients had to be told the handling lawyer was leaving and given enough information to decide whether to stay with the firm or seek new counsel, and where it was clear the departing lawyer would not be practicing, that should be communicated quickly. It noted Rule 5.2 (responsibilities of a subordinate lawyer), under which a supervisor may resolve an arguable question of professional duty, and Rule 1.5 on written fee agreements, declining to address the underlying contract questions. Because the firm was named as counsel, the legal responsibility for the representation rested with the firm.

The committee also discussed the rule barring false or misleading communications about a lawyer's services (which it labels Rule 1.7), citing Professor John Freeman's view that the best way to advise clients of their options in a firm split is a joint letter from the departing lawyer and the old firm. Finally, on loyalty, it cited the comment to Rule 1.7 and Rule 1.7(b): loyalty is impaired when a lawyer's own interests materially limit the representation, and here the departed associate could not continue, so the representation fell to the firm. The committee concluded that if the firm had not sent the notification letter it should do so immediately, and the departed lawyer should also write clients where questions had arisen. As to the unpaid wages, the committee concluded that is a legal matter, not an ethical one, and beyond its purview.

Currency note

This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 must notify clients when a lawyer leaves the firm?

A: The committee concluded the firm should send the notification it promised; under Rule 1.4 clients must be told the handling lawyer is leaving and given enough information to decide whether to stay or seek new counsel. If the firm does not, the departed lawyer should write the clients herself.

Q: Who is responsible for continuing the representation?

A: The committee concluded the firm. Because the firm was named as counsel on the client contracts and the departed lawyer was not practicing, the legal responsibility for the representation rested with the firm.

Q: Is the firm's failure to pay the lawyer's wages an ethics violation?

A: No. The committee concluded the firm's debt to the lawyer is a legal matter, not an ethical one, and therefore beyond the committee's purview.

Background and rules framework

The opinion applied Rule 1.4 (keeping clients reasonably informed), Rule 5.2 (responsibilities of a subordinate lawyer), Rule 1.5 (fee agreements, including the writing requirement for contingent fees), and the conflict and loyalty provisions the committee cited as Rule 1.7 (including 1.7(b), where a lawyer's own interests materially limit the representation), each corresponding to the like-numbered Model Rule. The committee left the underlying contract and wage questions to substantive law.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.4 / Model Rule 1.4: keeping the client reasonably informed.
• South Carolina RPC 5.2 / Model Rule 5.2: responsibilities of a subordinate lawyer.
• South Carolina RPC 1.5 / Model Rule 1.5: fees and written agreements.
• South Carolina RPC 1.7 / Model Rule 1.7: conflicts and the duty of loyalty (cited by the opinion, which also references it for false or misleading communications about a lawyer's services).

Cases:

• In re Brown, 450 S.E.2d 586 (S.C. 1994) (referenced in related Opinion 97-32 on the scope of the attorney-client relationship).

See also

• SC Bar Ethics Op. 97-32: Opposing a Former Client
• SC Bar Ethics Op. 97-29: Subcontracting Appointments

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-30/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 97-30

Attorney is employed by Law Firm for two years and is paid salary plus a percentage of certain fees generated. After her resignation, Attorney returns to Law Firm on three occasions to try to wrap up unfinished matters. Attorney receives no compensation for this work. During her tenure, client signed Attorney-Client contracts naming Law Firm as counsel. Attorney is told by law firm that all clients will be notified that Attorney is no longer with Law Firm and that the client is free to retain another firm or that another attorney in Law Firm will handle any ongoing matter.

Two months after leaving Law Firm, Attorney receives a Motion To Be Relieved filed by Law Firm requesting that Law Firm be relieved as counsel and that Attorney remain the Attorney of Record. Also, Attorney receives contact from an opposing attorney in another matter notifying her that he had been advised by Law Firm that Attorney was handling the pending case. Attorney took no files from Law Firm and is not presently employed in the practice of law. Attorney has not been paid her last week's paycheck.

QUESTIONS:

1. What would Attorney's responsibilities be to any clients which she handled while at Law Firm?
2. What are Law Firm's responsibilities to these clients?
3. What is Law Firm's responsibility to Attorney for unpaid wages?

SUMMARY:
Law Firm should send the notification letter as promised and continue with the normal responsibilities of representation. Absent notification by Law Firm, Attorney should write to clients to notify them that she is not practicing law and that Law Firm has retained all client files. Law Firm's debt to Attorney is a legal matter, not an ethical matter; therefore, it is beyond the purview of this committee.

OPINION:
Rule of Professional Conduct 1.4 states:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

This Rule necessitates that clients be given timely, accurate information pertinent to their matters. If Attorney who has been handling the client's case is leaving Law Firm, the client needs to be notified. The client should be given enough information to decide whether to stay with Law Firm or to take the case to new counsel. If it is clear that the leaving Attorney will not be practicing law and that continuing the representation with Attorney is not an option, the client should be given this information as quickly as possible.

Another factor to consider is expressed in Rule of Professional Conduct 5.2, entitled Responsibilities of a Subordinate Lawyer. This rule states that a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. The Comment to this rule states ... when lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise, a consistent course of action or position could not be taken. The Comment goes on to state that if a question is reasonably arguable, the authority to determine the course of action ordinarily rests with the supervisor, and the subordinate may be guided accordingly.

Rule 1.5 specifies that certain contracts for representation, as Contingent Fee Agreements, shall be in writing. This factual description does not state the type of representation, and for purposes of this opinion, legal matters as to the client's contract with the Law Firm will not be discussed. As far as the legal responsibility under the Rules, this responsibility would be carried with the Law Firm, particularly since it was named on the contracts as counsel.

Rule 1.7 deals with communication concerning a lawyer's services and states that a lawyer shall not make false or misleading communication about the lawyer or the lawyer's services. This article is referred to by John Freeman in "Ethics Watch", South Carolina Lawyer (November, 1997), p. 12. Professor Freeman states "the best way to advise clients or former clients about their options in the face of a Law Firm split is through a joint letter sent by the departing lawyer and the old firm."

Finally, loyalty to the clients must be considered. The Comment to Rule 1.7 states that loyalty is an essential element in the lawyer's relationship to a client. The Comment states ... loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. Rule 1.7 (b) also states that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's own interests. In this factual situation, it is apparent that attorney is not able to continue the representation of these clients and that the continuation of the representation falls to Law Firm.

If Law Firm has not sent the notification letter, it should do so immediately. Attorney should also write to those clients where questions have arisen over representation.