The days of spending an entire career at one firm are long gone. By the end of three years, nearly half of all associates leave. Partners bail out for many reasons – compensation, lifestyle choice, and conflicts with other partners – to name a few.
No matter who you are, tread lightly when you leave. Departing lawyers have ethical, contractual, and legal responsibilities.
If you are a partner
Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners. Contractual duties are controlled by your written partnership agreement. Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.
If you are not a partner
Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.
Are issues likely to arise?
Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.
Give notice before you contact clients
Inform the firm of your decision to leave before contacting any clients. Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship. It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).
Although there is no explicit rule requiring lawyers to be candid and fair with their partners or employers, such an obligation is implicit in the prohibition…against dishonesty, fraud, deceit, or misrepresentation. Moreover, such conduct is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.” In re Complaint as to the Conduct of Murdock, 328 OR 18, 25 (1998), citing, In re Smith, 315 Or 260, 266 (1992). See also OSB Formal Op No 2005-70; ABA Formal Op No 99-414.
Assessing your client caseload
Undoubtedly there are clients you would like to take with you, but there may also be clients you prefer to leave behind. Draft a client notification letter informing clients of your departure. Schedule a meeting with your supervising partner or other appropriate member(s) of the firm. Bring a printout of your current cases and your draft client letter. This meeting must occur before you contact any clients. [Note: more than one notification letter will be necessary if you intend to keep some clients and leave others behind.]
For clients transitioning to your new firm
Make arrangements to obtain trust funds, copy paper and digital records, and sign new fee agreements. Checklists documenting the steps to take when leaving a firm are available from the OSB Professional Liability Fund.
For clients you are leaving behind
Properly document client files by preparing memos describing the status of each case and any upcoming deadlines. If you are attorney of record, withdraw or confirm that a substitution of counsel has been filed where necessary. Otherwise, you remain on the hook. Check out the resources available from the OSB Professional Liability Fund describing a lawyer’s duties upon withdrawal and termination of representation. If in doubt, contact the OSB General Counsel’s office or consult with outside counsel.
- Misleading clients about their right to choose counsel
- Contacting clients before speaking to your firm about your departure
- Taking client files without the knowledge or consent of the firm
- Taking client money without the knowledge or consent of the firm
- Taking firm property, including forms, research, or other materials, without the consent of the firm
- Put clients first. Whether you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.
- Keep the transition as amicable, professional, and stress-free as possible. Contentious withdrawals alienate clients and damage relationships.
- Remember to take a list of clients with you so you can screen for conflicts at your new firm.
Handled properly, your departure should be smooth and uneventful.
All Rights Reserved 2017 Beverly Michaelis
Pingback: Year in Review | Oregon Law Practice Management