When a lawyer leaves a firm, must the departing lawyer tell the old firm which clients he contacted and what his departure letters said, and was a notice letter that mentioned Bar Ethics Counsel misleading?

Plain-English summary

A trademark associate left one firm for another and, after departing, wrote letters to clients (his own originated clients and firm clients) telling them of his move and their options to stay with him, hire other counsel, or remain with the first firm. He did not notify or copy the first firm, and refused the firm's later request for the client list and copies of the letters. The committee was asked whether that refusal was unethical and whether the letter was misleading under Rule 7.1.

The opinion stresses that it addresses only the Rules of Professional Conduct, not the separate law of fiduciary duty, partnership, or any employment agreement, which is outside its purview. On the first question, it applies Rule 1.4 (communication) and Rule 1.16(d) (steps to protect clients on termination). Drawing on LEO 1332 and ABA Formal Op. 99-414, the committee endorses a joint firm-and-lawyer notice letter as the recommended (not required) practice, listing the items such a letter should contain and the ABA's cautions (limit to current clients, do not urge the client to leave the firm, make clear the client decides, do not disparage the firm). If the firm will not cooperate, the departing lawyer may send notice unilaterally. The standard under Rule 1.16(d) is avoiding prejudice to clients, not courtesy to colleagues, so absent facts showing the secrecy harmed clients, nothing required the lawyer to give the firm the mailing list or letters; the Rules create no firm "right to police" the lawyer's communication duty.

On the second question, the committee finds the one quoted letter not misleading under Rule 7.1. Referencing the Bar's Ethics Counsel was an accurate recitation of the lawyer's notice obligation, not an implication the firm was in trouble; the clients' foreign citizenship did not by itself make plain language misleading; and listing "stay with First Firm" last was not improper, since no provision dictates the order of options so long as the letter does not push one choice.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a departing lawyer's duty runs to giving clients adequate notice under Rule 1.4 and protecting their interests under Rule 1.16(d), not to disclosing the client list or letter contents to the former firm. Per the opinion, a joint notice letter is a strong recommendation rather than a requirement, and a notice letter is judged misleading under Rule 7.1 by its actual content, not by speculation about how a reader might construe a reference to Ethics Counsel or the order of listed options.

Common questions

Q: Must a departing lawyer tell the old firm which clients he wrote to and what he said?

A: No. The opinion finds no provision in the Rules creating a duty to provide that information to the firm; Rule 1.16(d) is about protecting clients, and absent harm to clients the lawyer need not share the list or letters.

Q: Does a departing lawyer have to send a joint letter with the firm?

A: No. The opinion treats the joint letter recommended in LEO 1332 and ABA Op. 99-414 as a strong recommendation, not a requirement; either the lawyer or the firm can satisfy the Rule 1.4 notice duty by sending an appropriate letter unilaterally.

Q: Was it misleading to mention the Virginia State Bar Ethics Counsel in the notice letter?

A: No. The opinion concludes the reference was an accurate statement of the lawyer's notice obligation and that any inference of firm wrongdoing would be speculative, so the letter did not violate Rule 7.1.

Q: Did listing the option to stay with the firm last make the letter improper?

A: No. The opinion finds no rule dictating the order of options, so long as the language does not try to persuade the client toward one choice of counsel.

Background and rules framework

The opinion interprets Rule 1.4 (Model Rule 1.4), requiring a lawyer to keep clients reasonably informed, and Rule 1.16(d) (Model Rule 1.16(d)), requiring steps to protect a client's interests on termination, including reasonable notice. It applies Rule 7.1 (communications concerning a lawyer's services) to the notice letter's content. It draws guidance from LEO 1332 and ABA Formal Op. 99-414 on lawyer departures and joint notice letters, and notes related departure opinions (LEOs 1757, 1732, 1556, 1506, 1403).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Virginia Rule 1.4 (communication; reasonable notice to clients)
• Model Rule 1.16(d) / Virginia Rule 1.16(d) (protecting client interests on termination)
• Model Rule 7.1 / Virginia Rule 7.1 (false or misleading communications about services)

Other opinions cited:

• ABA Formal Op. 99-414 (ethical obligations when changing firms; joint notice letters)
• Virginia LEO 1332 (departing-attorney notice to clients; joint letter contents)
• Virginia LEOs 1757, 1732, 1556, 1506, 1403 (other departing-attorney obligations)

See also

• ABA Formal Op. 99-414: Ethical Obligations When Changing Firms
• ABA Formal Op. 489: Notice When Lawyers Change Firms
• ABA Formal Op. 497: Conflicts From Materially Adverse Interests

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1822.pdf

Original opinion text

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

Committee Opinion
January 10, 2006
LEGAL ETHICS OPINION 1822

WHETHER ATTORNEY, WHO LEAVES
A FIRM, IS REQUIRED TO INFORM
FIRM WHICH CLIENTS HE
CONTACTED ABOUT HIS DEPARTURE
AND ABOUT THE CONTENT OF THE
COMMUNICATION.

You have presented a hypothetical involving a lawyer’s departure from a firm. An
associate attorney worked for six years in the trademark department and was supervised
by the head of that department, who reported to the firm’s Executive Committee. The
associate worked primarily for firm clients, usually preparing correspondence for the
signature of a firm partner but sometimes under his own signature. Many of the firm’s
trademark clients are foreign, especially Japanese companies and law firms. Partners in
the firms have long-established relationships with firm clients, including personal
relationships with some of the clients.
At the end of the six years, the associate left the firm and joined a second firm, also as
an associate. At the time of his departure, there were four or five clients for whom the
associate was the client originator.
After leaving the firm, the associate wrote letters to a number of clients, his own clients
and the firm’s clients. At least one of those letters stated as follows:
After over 6 years, I have decided to leave First Firm to join Second
Firm. The Virginia State Bar Ethics Counsel indicates that you should
be advised of my departure from First Firm and that you should be
informed of the following options: I can continue representing you in
trademark matters, you can hire other counsel, or you can stay with
First Firm.
The associate did not inform the first firm of his intention to contact the clients and did
not copy the first firm on the letters to clients. After learning that the associate had been
contacting clients, the first firm requested him to provide a list of the clients who were
contacted and copies of those letters. The associate refused both requests.
Based on this hypothetical scenario, you have asked the Committee to opine on the
following questions:
1) Whether it was unethical for the associate to refuse to provide the first firm with
copies of the letters to the clients and the list of clients to whom the letters were
sent, and
2) Whether the letter sent by the associate was misleading, or otherwise violated
Rule 7.1 (“Communications Concerning a Lawyer’s Services”).
In determining the permissibility of this associate’s letter-writing, this Committee will
focus its remarks on whether the content and transmission of the letters conformed to the

Committee Opinion
January 10, 2006
requirements of the Rules of Professional Conduct, as interpretation of those rules is the
role of this Committee. See Rules of the Virginia Supreme Court, Pt. 6, IV, Para. 10.
There may be other sources governing this associate’s conduct, such as a possible
fiduciary relationship between the lawyer and his firm, which would be governed both by
the general law regarding partnerships as well as this specific firm’s partnership and/or
employment agreements. Interpretation of that law or those agreements would be outside
the purview of this Committee. This opinion exclusively addresses the application of the
Rules of Professional Conduct to this attorney’s departure. 1 The Committee endorses the
following advice in this context:
Before preparing to leave one firm for another, the departing lawyer
should inform herself of applicable law other than the Model Rules,
including the law of fiduciaries, property and unfair competition.
ABA Formal Op. 99-414.
Your first inquiry questions the permissibility of the associate refusing to provide both
the list of clients contacted and the content of the letters sent. The primary ethical
provisions governing this firm departure are Rule 1.4 (“Communication”) and Rule 1.16
(“Declining or Terminating Representation”). Rule 1.4 provides as follows:
(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.
(c) A lawyer shall inform the client of facts pertinent to the matter and
of communications from another party that may significantly affect
settlement or resolution of the matter.
Rule 1.16, in pertinent part, provides as follows:
(d) Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client, allowing time for
employment other counsel, refunding any advance payment of fee
1

The Committee notes that a serious breach of a clear fiduciary duty by an attorney in any context could
rise to the level of some ethical impropriety, such as a violation of the prohibition against deliberately
wrongful acts in Rule 8.4. Nevertheless, the identity of the parameters of the fiduciary duty and what
constitutes a breach is, to reiterate, outside the purview of this Committee. Moreover, parameters can not
be determined with the limited facts presented, especially without reference to any partnership or
employment agreements in effect at this firm.

Committee Opinion
January 10, 2006
that has not been earned and handling records as indicated in
paragraph (e).
This Committee has addressed the ethical obligations of both a departing attorney and
the firm he leaves in LEO 1332. 2 LEO 1332 discusses the duty of an attorney to notify
clients of his departure from a firm. Rule 1.4 requires an attorney to inform clients of
pertinent facts about their case and to keep them updated regarding the status of that case.
That the attorney, or one of the attorneys, representing a client is departing the firm is the
sort of information that must be provided to a client. LEO 1332 recommends but does
not require that the firm and the departing attorney prepare a joint letter to all appropriate
clients that:
(1) identifies the withdrawing attorneys;
(2) identifies the field in which the withdrawing attorneys will be
practicing law, gives their addresses and telephone numbers;
(3) provides information as to whether the former firm will continue to
handle similar legal matters, and;
(4) explains who will be handling ongoing legal work during the
transition.
LEO 1332, citing California Bar Op. 1985-86. This notion of a joint letter is also
recommended in ABA Formal Op. 99-414. In addition to the above four items for
inclusion in a departure notice letter, the ABA suggests that such a letter be written as
follows:
1) the notice should be limited to clients whose active matters the
lawyer has direct professional responsibility at the time of the notice
(i.e., the current clients);
2) the departing lawyer should not urge the client to sever its
relationship with the firm, but may indicate the lawyer’s willingness
and ability to continue her responsibility for the matters upon which she
currently is working;
3) the departing attorney must make clear that the client has the
ultimate right to decide who will complete or continue the matters; and
4) the departing lawyer must not disparage the lawyer’s former firm.
The Committee endorses this advice from the ABA.

2

The Committee clarifies that as this opinion request is specifically about the letters used as notice to
clients when an attorney departs a firm, the discussion will focus on that issue and LEO 1332’s prior
discussion of it. However, the Committee notes the prior LEOs, involving departing attorneys, that address
other ethical responsibilities in this situation. See LEO 1757 (provision of client list to departing attorney
to perform conflicts checks); LEO 1732 (fee arrangement regarding cases departing attorney takes with
him); LEO 1556 (financial arrangements with departing attorneys); LEO 1506 (firm’s refusal to provide
contact information for departed attorney); LEO 1403 (handling of client files and fees when attorney
departs).

Committee Opinion
January 10, 2006
The recommendation is for a joint letter. However, should a departing attorney
conclude that his firm is being uncooperative regarding such a letter, either by a direct
refusal or by stalling the actual production and transmission of the letter, then the
departing attorney should send the letter unilaterally. In the present scenario, there is no
indication that the attorney ever sought that cooperation from the firm before sending his
letters, but the Committee would recommend that departing attorneys, where feasible, do
so. However, as noted in ABA Formal Op. 99-414:
Unfortunately, this [joint letters] is not always feasible when the
departure is not amicable. In some instances, the lawyer’s mere notice
to the firm might prompt her immediate termination. When the
departing attorney reasonably anticipates that the firm will not
cooperate on providing such a joint notice, she herself must provide
notice to those clients for whose active matters she currently is
responsible or plays a principal role in the delivery of legal services…
The facts provided with the present scenario do not shed light on the climate of this
firm and the nature of its relationship with this attorney to allow for determination of
whether a joint letter was feasible. In the facts you present, the departing associate did
not write his letters until after he left the firm. In the end, the idea of a joint letter sent by
a firm and departing attorney to clients about the upcoming departure is only a strong
Committee recommendation, and not a requirement. Either the departing attorney or the
attorneys in the remaining firm will have met their independent 1.4 obligation to provide
notice to the clients of the employment change by unilaterally sending an appropriate
letter. 3 Of course, a firm that would like all departures to go smoothly could develop a
firm policy, with formal agreement by all partners and associates, laying out the
procedure to be followed by any attorney departing the firm. Such a policy could include
a requirement that a joint letter be sent, containing language in line with the discussion in
this opinion and LEO 1332 regarding proper notice to clients.
In considering whether this attorney was required to provide to the firm the list of
clients to whom he sent the letter as well as the content of the letter, the standard of Rule
1.16(d) governs. That standard is not one of courtesy to colleagues, but rather avoiding
prejudice to clients. While certainly the departing attorney’s secretive manner regarding
these letters may sour his relationship with the firm, that manner is not per se prohibited.
The issue for ethical permissibility is whether that secretiveness hurt the clients in some
way. Rule 1.16(d) requires that termination of representation includes “steps to the
extent reasonably necessary to protect a client’s interest.” Thus, an attorney may not
simply disappear; he must depart a firm and clients in a way that protects the clients.
However, the Committee does not see any facts in the present scenario indicating that
notice to the clients was insufficient protection such that providing the firm with a
mailing list and a copy of the letters was in some way essential for client protection. So
3

The Committee notes from the facts that the departing attorney actually sent the letters to clients after
departure from the firm. The limited facts provided do not allow the Committee to determine whether the
timing of those letters rendered their transmission insufficient to fulfill the attorney’s Rule 1.4
communication obligation to clients. See LEO 1332.

Committee Opinion
January 10, 2006
long as the letters contained the appropriate notice language, as discussed above and in
LEO 1332, then the requisite protection had already occurred with no further action
required, including this sharing of information with the firm. 4
The request raises the concern as to how the firm is to ensure that the letters are
appropriate in content and the list of clients contacted is not overly inclusive if the
departing attorney is not required to provide that information. The Committee opines that
while the departing attorney has this duty to communicate, nothing in the rules
establishes a right on the part of the firm to police the exercise of that duty. The
Committee sees no provision in the Rules of Professional Conduct creating an affirmative
duty to provide that information to the firm. Nonetheless, the Committee recognizes that
this sort of lack of cooperation serves no valuable purpose beyond continuing the
hostilities between a departing attorney and the firm which he leaves.
Your second question asks whether the letters themselves were misleading. The facts
do not provide the content of most of the letters but do provide language from one letter.
The Committee can only answer this question with regard to that language; consideration
of any other letters would only be speculative.
Your question regarding whether these letters were misleading refers to Rule 7.1
(“Communications Concerning a Lawyer’s Services”). Rule 7.1 states, in pertinent part,
as follows:
(a) A lawyer shall not, on behalf of the lawyer or any other lawyer
affiliated with the lawyer or the firm, use or participate in the use of
any form of public communication if such communication contains a
false, fraudulent, misleading, or deceptive statement or claim. For
example, a communication violates this Rule if it:
(1) contains false or misleading information;…
Your request suggests three different aspects of the present situation that potentially
render the quoted language as misleading. The first is that the letter refers to the Virginia
State Bar. Specifically, the letter states:
The Virginia State Bar Ethics Counsel indicates that you should be
advised of my departure from First Firm and that you should be
informed of the following options: …
The implication in your request is that this reference to the Bar’s Ethics Counsel creates
an impression on the reader that the firm is in some sort of ethical trouble, perhaps
triggering this attorney’s departure. While it is not implausible that some reader might
4

The Committee reiterates at this point that, as discussed at the introduction of this opinion, the
conclusions drawn here analyze exclusively the obligations of the attorney under the Rules of Professional
Conduct and not the law of fiduciary relationships or any partnership/employment agreements that may
have been in effect.

Committee Opinion
January 10, 2006
draw that particular conclusion, there are no facts to support that such was the case. On
the contrary, the language presumably is intended to formalize advice the attorney
apparently obtained from Ethics Counsel as to his obligations when departing the firm,
with the letter serving as the implementation of that advice. Was it necessary to explain
to the clients that the attorney consulted with Ethics Counsel? No. Was it misleading to
reference that consultation? No. Any confusion on the part of the reader regarding this
language would be speculative at best, with nothing indicating that the attorney intended
anything other than a recitation of his notice obligation.
A second aspect of the present situation that your request implies renders the letter
misleading is the identity of these particular clients. Specifically, the clients are foreign
citizens living overseas. Thus, the implication is that these clients would more easily be
confused by the quoted language. Again, while the Committee understands the concern,
the Committee finds it to be too speculative to support a determination that the attorney
impermissibly used misleading language. Certainly, with all client communications, an
attorney must be cognizant of any language or cultural barrier or disability calling for
extra effort to ensure effective communication. However, the mere fact that these clients
are from another country does not render this letter to them misleading; the language is
not especially technical or complex. Absent any additional facts, the Committee does not
consider the citizenship or residency of the clients alone sufficient to render this language
misleading.
Finally, your request suggests that the language is misleading in that the order of
options presented places the choice of staying with the firm last. While the Committee
recognizes a time-honored etiquette tradition of always mentioning oneself last, the
Committee finds no provision in the Rules of Professional Conduct requiring that
particular courtesy in these departure letters. So long as nothing in the language attempts
to persuade the client to make one choice over another regarding choice of counsel, the
particular order in which the choices are presented is not an issue. The listing of the
choices in the quoted language comports with proper notice requirements as articulated
earlier in this opinion and in LEO 1332.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.