When a Tennessee lawyer leaves a law firm, who must notify the clients, and what choices does the client have?

Plain-English summary

The Board addressed the duties that arise when a lawyer leaves a firm. The opinion concludes that both the departing lawyer and the firm have an ethical duty to protect client interests during the transition and to inform affected clients of the lawyer's departure. Because the departure of a lawyer responsible for a client's matter is information that may affect the matter and require a client decision, RPC 1.4 requires that the client be told. The client has the right to select counsel, so the fact that the lawyer is leaving, and where the lawyer will practice, is information that helps the client decide whether to stay with the firm, leave with the lawyer, or seek representation elsewhere. The opinion states that notice should be given by the departing lawyer, the firm, or preferably jointly.

The opinion explains that a firm may require a period of advance notice, but the notice requirement cannot be so rigid that it restricts the client's choice of counsel or unreasonably delays diligent representation; an overly rigid rule may violate RPC 5.6, which prohibits agreements that restrict a lawyer's right to practice after leaving. Drawing on ABA Formal Opinions 99-414 and 489 and State Bar of Arizona Formal Opinion 10-02, the opinion describes a joint communication to clients with whom the departing lawyer had significant contact, giving each the three options.

The opinion also addresses access to firm resources. A firm cannot restrict a departing lawyer's access to the client information and systems needed to represent clients competently and diligently during the notice period, including client contact information; once the lawyer has left, the firm should set automatic notices for the departed lawyer's email and voicemail and forward client communications. RPC 5.1 places on firm management the obligation to have procedures that ensure the ethical transition of client matters. Where the firm has a substantial question about a departing lawyer's fitness (for example misconduct, illness, or impairment), the firm should use its best judgment about restricting access, the duty to inform clients may fall on the firm, and the circumstances may trigger the firm's reporting duty under RPC 8.3(a).

In practice

Under this opinion, when a Tennessee lawyer notifies a firm of an intended departure, both the lawyer and the firm hold a duty under RPC 1.4 to inform affected clients of the departure and the client's three options, and the opinion identifies a joint communication as the preferred method. The opinion holds that firm notice-period rules cannot restrict the client's choice of counsel or unreasonably delay representation without implicating RPC 5.6, and that the firm cannot cut off the departing lawyer's access to information needed to serve clients during the notice period. Firm management's duty under RPC 5.1 is to have transition procedures in place; the opinion suggests written firm policies as the means of providing that guidance.

Common questions

Q: When a Tennessee lawyer leaves a firm, who has to tell the clients?

A: Per Opinion 2023-F-169, both the departing lawyer and the firm have the duty to notify affected clients under RPC 1.4; the opinion states notice should be given by the lawyer, the firm, or preferably jointly.

Q: What options must the client be given?

A: The client must be told they may stay with the firm, leave with the departing lawyer, or choose another firm altogether. The opinion frames this as flowing from the client's right to select counsel.

Q: Can a firm require advance notice before a lawyer departs?

A: Yes, but the opinion holds the requirement cannot be so rigid that it restricts the client's choice of counsel or unreasonably delays diligent representation; an overly rigid rule may violate RPC 5.6.

Q: Can a firm cut off the departing lawyer's access to client files and email?

A: Not where that access is necessary to represent clients competently and diligently during the notice period. The opinion says firms cannot restrict access to client contact information and systems needed for representation, though they need not provide access to proprietary materials not needed for that purpose.

Q: What if the firm doubts the departing lawyer's fitness?

A: The opinion says the firm should use its best judgment about restricting access, the duty to inform clients may fall directly on the firm, and the circumstances (misconduct, fraud, illness, incapacity, substance abuse) may trigger the firm's duty to report under RPC 8.3(a).

Background and rules framework

The opinion interprets several Tennessee Rules of Professional Conduct against their Model Rule counterparts: RPC 1.4 / Model Rule 1.4 (communication and client decisions), RPC 5.6 / Model Rule 5.6 (restrictions on a lawyer's right to practice), RPC 5.1 / Model Rule 5.1 (responsibilities of partners and managers), RPC 1.16(c) / Model Rule 1.16(c) (continuing representation when a tribunal orders it), and RPC 8.3(a) / Model Rule 8.3(a) (reporting professional misconduct).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Tennessee RPC 1.4 (communication)
• Model Rule 5.6 / Tennessee RPC 5.6 (restrictions on right to practice)
• Model Rule 5.1 / Tennessee RPC 5.1 (firm supervisory responsibility)
• Model Rule 1.16(c) / Tennessee RPC 1.16(c) (continuing representation on court order)
• Model Rule 8.3(a) / Tennessee RPC 8.3(a) (reporting misconduct)

Other opinions cited:

• ABA Formal Opinion 99-414 (1999): ethical obligations when a lawyer changes firms
• ABA Formal Opinion 489 (2019): obligations related to notice when lawyers change firms
• State Bar of Arizona Formal Opinion 10-02 (2010)

See also

• ABA Formal Op. 489: Notice When Lawyers Change Firms
• ABA Formal Op. 99-414: Lawyers Changing Firms
• ABA Formal Op. 06-444: Retirement Restrictive Covenants

Source

• Landing page: https://www.tbpr.org/ethic_opinions/2023-f-169-ethical-obligations-of-departing-attorneys-and-their-former-firms-to-notify-clients-of-their-options-when-an-attorney-leaves-a-firm

Original opinion text

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

2023-F-169 Ethical obligations of departing attorneys and their former firms to notify clients of their options when an attorney leaves a firm

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE FORMAL ETHICS OPINION 2023-F-169

The Board of Professional Responsibility, in response to numerous ethics inquiries on this subject, issues this opinion as guidance regarding the ethical obligations of departing attorneys and their former firms to notify clients of their options when an attorney leaves a firm.

OPINION

Departing lawyers and their law firms have an ethical duty to protect client interests when a lawyer leaves a law firm. The departure of a lawyer who represents a client or is responsible for the law firm’s delivery of legal services currently on a matter is information that may affect the status of a client’s matter and require the client to make a decision regarding the representation as set forth in RPC 1.4. A departing lawyer and the law firm have an ethical duty to inform the client of the lawyer’s departure. Because a client has the right to select counsel of the client’s choice, the fact that the lawyer is leaving and where the lawyer will ultimately practice is information that will aid the client in determining whether to stay with the law firm, leave with the lawyer or seek legal representation elsewhere. Notice should be given to the client by the departing lawyer, the law firm, or preferably, jointly by the law firm and the lawyer.

DISCUSSION

Many lawyers will change law firms during their careers. When a lawyer departs from a law firm, clients should be given the option to stay with the firm, go with the departing attorney, or choose another law firm altogether.[1]

The law firm and the departing lawyer both have the ethical obligation to protect the clients’ interests during the departing lawyer’s transition. “Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.”[2] As noted in State Bar of Ariz., Formal Op. 10-02 (2010) “When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts. These ethical obligations can best be satisfied through cooperation and planning for any departure.” Law firms may require a period of advance notice of a lawyer’s intended departure. Notice should be long enough for clients to make decisions about who will represent them as required by RPC 1.4(a)(1). However, law firm notification requirements cannot be so rigid that they restrict or interfere with a client’s choice of counsel or serve to unreasonably delay the diligent representation of a client and therefore may violate RPC 5.6 which prohibits restraints on a client’s choice of counsel.

RPC 5.6 provides: A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.

“While the departing lawyer and the firm may unilaterally inform clients of the lawyer’s impending departure at or around the same time that the lawyer provides notice to the firm, the firm and departing lawyer should attempt to agree on a joint communication to firm clients with whom the departing lawyer has had significant contact, giving the clients the option of remaining with the firm, going with the departing attorney, or choosing another attorney.”[3] Copies of the joint communication should be provided to both the law firm and the departing lawyer.

When a lawyer gives notice of the intention to leave a firm, the firm often assigns a new lawyer to the case for the purposes of continuity, however that does not change the firm’s obligation to cooperate with the departing lawyer to notify the firm clients for whom the departing lawyer was responsible for providing legal services of the client’s options.

The law firm management should assess if it has the capacity and expertise to offer to continue to represent the clients. If the departing lawyer is the only lawyer at the firm with the expertise to represent a client on a specific matter, the firm should not offer to continue to represent the client unless the firm has the ability to retain other lawyers with similar expertise. If a client wants to remain with the firm and the court refuses to allow the departing lawyer to withdraw, the lawyer “shall continue representation notwithstanding good cause for terminating the representation.”[4]

RPC 5.1 sets forth law firm management’s obligations to establish procedures to ensure the ethical transition of client matters when lawyers change firms.

RPC 5.1(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

Ideally the firm will have written policies to provide guidance to lawyers about the procedures the firm anticipates following when a lawyer leaves the firm.”[5]

“Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period.”[6] These resources would include client contact information, and the use of computer client data. Likewise, if the lawyer’s departure is immediate, the firm should not restrict the lawyer’s access to client contact information because the lawyer has the ethical obligation to notify current clients of his/her departure. RPC 1.4 requires the lawyer to “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in RPC 1.0 (e), is required by these Rules.”[7]

Firms cannot prohibit or restrict access to email, voicemail, files, and electronic court filing systems where such systems are necessary for the departing lawyer to represent clients competently and diligently during the notice period. Firms are not obligated to provide such access to proprietary or confidential materials not necessary for the departing lawyer to represent clients during the notice period. Once the lawyer has left the firm, the firm should set automatic email responses and voicemail messages for the departed lawyer’s email and telephones, to provide notice of the lawyer’s departure, and offer an alternative contact at the firm for inquiries. A supervising lawyer at the firm should review the departed lawyer’s firm emails, voicemails and paper mail in accordance with client directions and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer.[8]

There may be instances where the law firm has a substantial question as to a departing lawyer’s fitness as a lawyer as a result of misconduct, fraud, illness, incapacity, substance abuse, dependency or similar circumstances. Under those circumstances the law firm should use its best judgment as to the restriction of the departing lawyer’s access to files and client information, and the duty to inform the client may fall directly upon the law firm. Such circumstances may trigger the law firm’s duty under RPC 8.3(a) to report.

CONCLUSION

Lawyers have the right to change law firms and clients have the same right to change lawyers or law firms. Lawyers and law firms have the ethical obligations to protect client interests when a lawyer leaves a law firm. Such protection involves notice to the client of the lawyer’s departure, advising clients of their options for continued representation, and a smooth transition in accordance with the client’s wishes for their continued representation.

This 7th day of August, 2023.

ETHICS COMMITTEE

Barbara Medley, Chair

Charles K. Grant

Juanita Patton

APPROVED AND ADOPTED BY THE BOARD

[1] ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 99-414 (1999) at n. 1 (clients should be given the option to stay with a firm, go with a departing attorney, or choose another firm altogether).

[2] ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 489, 1 (2019).

[3] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 99-414, at p. 2. (1999).

[4] Tennessee Rules of Professional Conduct, RPC 1.16 (c).

[5] ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 489, p. 1 (2019).

[6] Id. at p. 1.

[7] Tennessee Rules of Professional Conduct, RPC 1.4(a).

[8] Id at p. 7.