The objective of The Ethics and Professional Liability Bulletin is to keep legal professionals informed of recent developments and trends in the areas of legal ethics, professionalism, and professional liability.
May 4, 2021 – Today, compared to decades past, lawyers are more likely to change law firms during the course of their careers. This persistent trend raises questions about the ethical duties departing lawyers and law firms have to the clients they serve.[1] The Ohio Board of Professional Conduct (the “Board”) issued an opinion in August 2020 offering new advice for departing lawyers, and recommended a departing lawyer may notify affected clients (those the lawyer has principal responsibility for representing) of his or her intended departure at the same time or after the lawyer informs the law firm but not before. A law firm and a departing lawyer may jointly or separately notify affected clients of the lawyer’s departure from the firm. The client may choose to remain with the firm, follow the departing lawyer, or seek new counsel altogether. This 2020 advisory opinion emphasizes that the departing lawyer may offer to continue representing the client and withdraws Adv. Op. 98-05.
A departing lawyer must notify affected clients of his or her departure from a law firm, and may identify the lawyer’s new practice location and indicate a willingness to provide future legal services. A lawyer “with principal responsibility” for a client has a duty to keep the client up-to-date on the status of a matter, including any changes to the substance of the lawyer’s representation.[2] A lawyer “with principal responsibility” is any lawyer in a firm who plays a major role in the legal representation of a client.
As such, a lawyer with a principal responsibility for a client who departs a law firm during the course of representing that client must notify the client of his or her departure. While the Board strongly recommends joint notices, it observes, while less desirable, that the departing lawyer and the law firm may separately notify the client. The Board cautions that, “[i]t is improper for either the law firm or departing lawyer in a notice to infer or imply that a client is the firm’s [client] or lawyer’s client.”[3]
After providing the client with proper notice of his or her departure from a firm, a lawyer may, consistent with his or her ethical duties, directly solicit the former client for employment. In many cases, the departing lawyer may have been actively representing the affected client at the time of departure, and thus the lawyer may indicate a willingness to continue that representation. Solicitation is permissible even if the lawyer’s representation of the client terminates upon the lawyer’s departure from the firm because the departing lawyer had a prior professional relationship with that client.[4] However, a departing lawyer may not interfere with a client’s right to choose counsel going forward.[5]
A law firm must notify affected clients of a lawyer’s departure from the firm and may inform the clients of the law firm’s desire to continue providing legal services. The Board recommends that a departing lawyer with principal responsibility for clients and law firms (when possible) jointly draft and distribute a notice to affected clients that includes the departing lawyer’s last date of employment with the firm and the lawyer’s new business address and contact information.[6]
The notice to the client, whether sent separately or jointly, should give the client sufficient time to make an informed decision as to whether the client will continue the professional relationship with the departing lawyer, the law firm, or neither, without harming the client’s interests.[7] There are no set timeframes in Ohio for what constitutes “sufficient” or “reasonable” notice, but the Board points to Ohio Prof. Cond. R. 1.4 and suggests that the timing of such notice “must be reasonable under the circumstances and consistent with the client’s best interests.”[8]
A law firm may separately contact the client to offer to continue providing representation.[9] But if the law firm cannot continue to represent the client due to a lack of competent lawyers in a particular area of practice, and the departing lawyer cannot continue to represent the client, the firm and the departing lawyer have the mutual duty to cooperate to find the client new counsel.[10] Neither a departing lawyer nor their law firm may interfere with the client’s right to his or her choice of counsel.
Conclusion and Practical Takeaway. A departing lawyer who has been principally responsible for providing clients’ legal services and the lawyer’s firm share an ethical obligation to inform affected clients about the lawyer’s departure. The Board continues to strongly urge departing lawyers and their law firms to issue joint notices to clients. The Board’s new advice clarifies the mutual ethical duties of client communication shared by departing lawyers and law firms but does not address questions related to civil liability arising from law firm departures.
Ulmer’s Ethics & Professionalism and Professional Liability Practice Groups offer strategic advice to attorneys and law firms regarding their ethical obligations and defend them in critical matters involving disciplinary complaints, internal law firm disputes, and legal malpractice. With decades of experience handling these sensitive matters, Ulmer’s team of experienced attorneys helps clients confront these challenges so they can keep their focus on the practice of law. Please feel free to reach out to our attorneys if you have any questions.
The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at amathews@ulmer.com.
[1] The advisory opinion does not address the civil remedies a law firm may have against a departing lawyer, nor the fiduciary duties of a departing lawyer to a firm. Ohio Board of Prof. Cond., Op. 2020-06, 2 n.2.
[2] Ohio Board of Prof. Cond., Op. 2020-06, 2.
[3] Ohio Board of Prof. Cond., Op. 2020-06, 4.
[4] Ohio Board of Prof. Cond., Op. 2020-06, 2, citing Ohio Rules of Prof. Cond. R. 7.3(a)(2).
[5] Ohio Board of Prof. Cond., Op. 2020-06, 4, citing Colo. Adv. Op. 116 (2007).
[6] Ohio Board of Prof. Cond., Op. 2020-06, 2–3.
[7] Ohio Board of Prof. Cond., Op. 2020-06, 3, citing ABA Op. 99-414 (1999).
[8] Ohio Board of Prof. Cond., Op. 2020-06, 3. See also Ohio Rules of Prof. Cond. R. 1.4(a) (“A lawyer shall do all of the following: . . . (3) keep the client reasonably informed about the status of the matter . . . .”) (emphasis in original).
[9] Ohio Board of Prof. Cond., Op. 2020-06, 2, citing Ohio Rules of Prof. Cond. R. 7.3(a)(2).
[10] Ohio Board of Prof. Cond., Op. 2020-06, 4.