At FirmVO, we’re all about lawyer mobility. After all, we create premium virtual offices for lawyers and law firms looking for flexibility. Over the past few years, lawyers have sought flexibility more than ever. “The primary reason for this trend is the increased earning potential in changing firms, although other reasons were cited in a 2018 survey by Robert Half Legal. Work-life balance, career autonomy and advancement potential received the next-highest mention.”
In seeking to ensure mobile lawyers abide by their oath, the American Bar Association recently released Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. Although the opinion doesn’t address any unresolved issues, it does provide clear guidance on the rights and obligations of departing lawyers. Below is the language from the new ethical guidance:
Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. 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. Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. 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. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.
The ABA opinion imposes ethical obligations on the departing lawyer and the departing lawyer’s former firm. The purpose behind the guidance is to protect the interests of clients during the transition period. The cooperation between all parties is essential “in determining whether notice provided by such lawyer to the firm is consistent with [ethical] obligations and with [Model] Rule 5.6(a).”
Rule 5.6(a) states, a lawyer must not offer or make: “(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.” The rule prohibits restrictions on a client’s decision of counsel. Through case law interpreting this rule, it’s clear that not only can lawyers be free from a fixed notice period, they don’t have to continue working at a firm through the end of the notice period.
Although law firms can’t impose rigid departure requirements, lawyers must be ethical in their departure. Prior to leaving a firm, there are a number of obligations lawyers must be cognizant of: