Separation from one’s law firm is never easy, whether for the soon-to-depart lawyer, the law firm, or the lawyer’s erstwhile clients—all of whom, as it happens, are also the law firm’s clients. Oftentimes, a dispute may erupt between the departing lawyer and the law firm over the retention of clients. But what happens where a law firm tries to show certain clients to the door, i.e., by advising them that the departed lawyer remains responsible for their matters, even after she has left the firm? Does that comport with the departed lawyer’s ethical duties to those clients? The New York State Bar Association Ethics Committee recently said it does not.
In Opinion 1195, the NYSBA Ethics Committee concluded that a lawyer has no duty to represent clients of the lawyer’s former law firm that have not engaged the lawyer to represent them at the lawyer’s new firm. The reason, the Committee stated, is simple: clients of the departed lawyer’s former firm become former clients if they haven’t retained the lawyer after her departure. Barring such engagement, the departed lawyer does not owe the former client the range of duties attendant to an ongoing attorney-client relationship. More critically, the former firm cannot on its own create an attorney-client relationship on behalf of the former client with the departed lawyer. According to the NYSBA, “an unaffiliated third party may not unilaterally impose such a relationship without the agreement of the lawyer and the client.”
This is not to say that the departed lawyer is without any obligations whatsoever to those former clients. She continues to have certain responsibilities to them under New York Rules of Professional Conduct ("Rules") 1.9 and 1.16(e), including:
- The duty not to represent a client adverse to the former client in a matter that is “the same or a substantially related matter” to one in which the lawyer previously represented the former client. Rule 1.9(a);
- The duty not to reveal the confidential information of the former client that is protected by Rule 1.6. Rule. 1.9(c); and
- The duty to avoid prejudice to the client upon departing the firm and terminating the attorney-client relationship. Rule 1.16(e).
But the Rules regarding to duties former clients are the extent of her obligations. The Committee reiterated, “unless the clients of the former firm have agreed to retain” the departed lawyer at her new firm, the lawyer’s duties are limited to those that “any lawyer owes a former client.”
In a time where downsizing and personnel transitions abound within law firms, the NYSBA’s opinion provides clarity to those firms on how to treat clients of departing attorneys. For departing attorneys, the opinion may provide some much-needed peace of mind, as it confirms that their duties to soon-to-be former clients soon are soon-to-be narrower.
A lawyer owes no duty to represent clients of a former firm absent a client’s agreement and instead owes such persons only the duties all lawyers owe to former clients.