The Firms, They are a' Changin'
By Deanna S. Brocker
and associates come and go, but the questions remain the same. I
get at least one call a day from either an attorney who has decided
the pastures are greener somewhere else, or a managing partner who's
just received an associate's notice. No matter what the specific
circumstances are, the attorneys have the same general inquiry:
How do I handle the separation in the right way?
are three concerns for both the firm and the departing lawyer. The
first is client notificationthat is, which clients must be
notified of the departure, who may contact the clients, how should
notice be given, and what should the notice say. The second is client
fileswhen should the file be transferred and should copies
be made by the firm. The final concern is legal feeshow are
they to be divided?
an attorney leaves a firm, every current client with whom the departing
attorney has a personal professional relationship must be notified.
Although a client may have a contractual relationship with a law
firm, any professional relationship with regard to legal matters
is necessarily personal as between the client and at least one identifiable
attorney. If an attorney has some responsibility for the client's
legal matter and has had personal contact with the client, then
a personal professional relationship exists. An attorney, who merely
has consulted on a particular matter or performed research on a
specific legal issue but has never met the client, does not have
a personal professional relationship with the client. See
the departing attorney and the firm will agree on the content of
the notice, who will send it, to whom it will be sent, and when
it will be sent. Ultimately, any attorney in the firm who has an
ongoing professional relationship with the client has an obligation
to see that the notice is sent. The notice should inform the client
of the attorney's departure and of the right to choose counsel freely.
Specifically, the client should be advised of the option to stay
with the firm, continue with the departing attorney, or retain completely
new counsel. The notice also should inform the client of the need
to instruct the firm what to do with the file. If necessary, the
notice may apprise the client of the status of the matter and whether
a decision as to representation needs to be made on an expedited
basis. See RPCs 48 and 200.
Although written notice is preferable, the notice need not be in writing or made jointly by the firm and the attorney. RPC 200. If the attorney has a personal professional relationship with the client, he also may contact the client personally or by telephone. Likewise, a representative attorney with the firm also may contact the client directly to notify her of the departure and advise her of the right to freely choose counsel. Both the firm and the departing attorney may express to the client an interest in continuing to represent her.
occasion, an associate may feel the need to notify clients of his
departure before informing his firm. Even though this practice is
not specifically prohibited by the Rules of Professional Conduct,
I always advise against it. As a matter of professionalism, the
firm ought to be informed first so that the firm can assist in handling
the separation in the appropriate manner. Likewise, denying a departing
attorney access to a client contact list or refusing to reveal to
inquiring clients the whereabouts of a former partner or associate
not only is unprofessional conduct but also violates the Rules of
Professional Conduct. See RPC 48 and Rule 8.4(c).
concern is client files. When may the files be transferred to the
departing attorney or other counsel? The files may be transferred
only after receiving a directive from the client. When an attorney
leaves a firm, he may not take files with him unless the client
already has elected to follow the attorney. An oral directive is
technically sufficient; however, a written directive will eliminate
uncertainty about the client's decision. It is important that the
client be given enough notice about the departure so that her file
may be transferred promptly. In this way, the client's interests
will not be prejudiced should she choose to leave the firm.
a client chooses to go with the departing attorney, the firm may
have a reasonable period of time to copy the file before transferring
it. The copying may not, however, interfere with the client's representation.
If the departing attorney needs the file immediately, arrangements
should be made to have the file available for the firm to copy at
a later time. The firm is responsible for any copying charges. See
generally RPC 178.
an area of some contention is the division of legal fees. Suppose
an attorney leaves a firm and takes a client with him before the
client's representation is complete. A significant advance fee was
collected and placed in trust. Upon final settlement or judgment,
how will the fee be divided?
the attorney leaves the firm, the attorney's employment agreement
governs how the fee is handled. For example, if the attorney is
an associate, he is paid a salary for work done up to the date of
departure. The firm would take that portion of the fee earned and
expenses incurred as of that date. The remainder of the fee ordinarily
would go to the attorney who completes the matter. Similarly, if
the client had a contingent fee arrangement with the firm, the departing
associate and the firm should agree on a proportional division of
the fee based upon the amount of time expended before the attorney
left the firm and the amount of time spent to complete the matter.
Rule 1.5(e) of the Revised Rules of Professional Conduct allows fees to be divided between lawyers not in the same firm under certain circumstances. Thus, the firm and departing attorney may agree to divide the fee for work done subsequently by the departing attorney under Rule 1.5(e).
to that rule, the firm could take a portion of the fee earned after
the attorney left only by written agreement with the client wherein
the departing lawyer and the firm assume joint responsibility for
the representation. Rule 1.5(e). Apart from Rule 1.5(e)'s requirements,
the State Bar does not ordinarily become involved with disputes
between attorneys over legal fees, so long as (1) the lawyers deal
honestly with one another, (2) the client does not pay more than
he originally agreed, and (3) the client is not dragged into the
Sometimes, when firms dissolve or when associates leave a firm, the separation gives rise to disputes amongst the attorneys. As a matter of professional responsibility and professionalism, it is paramount that such disputes be resolved amicably if possible, without client involvement. Although the firms are "a' changin'," the professional responsibility to protect the clients' interests remains the same.
Deanna S. Brocker is the ethics counsel for the North Carolina State Bar.
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