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Amendment clarifies the duties associated with leaving a firm


The Board of Governors has given final approval to a proposed rule amendment clarifying the duties of lawyers and law firms when a lawyer leaves the firm or the firm breaks up.

The board approved the amendment to the comment to Rule 4-5.8 at its December meeting. It now goes to the Supreme Court for approval. The board also received an amendment to Rule 4-1.7 on conflicts of interest and will act on that at its January 30 meeting.

The Rule 4-5.8 amendment addresses questions directed to Bar staff through the Bar’s Ethics Hotline by lawyers and law firms and addresses how and which clients must be informed of changes in a firm and provides that such communications must be reasonable in timeliness and nature.

The new comment language is: “Lawyers and firms should engage in bona fide, good faith negotiations within a reasonable period of time following their knowledge of either the anticipated change in firm composition or, if the anticipated change is unknown, within a reasonable period of time after the change in firm composition. The actual notification to clients should also occur within a reasonable period of time. What is reasonable will depend on the circumstances, including the nature of the matters in which the lawyer represented the clients and whether the affected clients have deadlines that need to be met within a short period of time.

“For purposes of this rule, clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact. Clients need not be notified of the departure of a lawyer with whom the client has had no direct contact. Clients whose files are closed need not be notified unless the former client contacts the firm, at which point the firm should notify the former client of the departure of any lawyer who performed significant legal services for that former client and had direct contact with that former client.

“Although contact by telephone is not prohibited under this rule, proof of compliance with the requirements of this rule may be difficult unless the notification is in writing.

“In order to comply with the requirements of this rule, both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.

“If neither the departing lawyer nor the law firm intends to continue representation of the affected clients, they may either agree on a joint letter providing that information to those clients, or may separately notify the affected clients after bona fide, good faith negotiations have failed. Any obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.”

On the conflict rule, Rules Committee Vice Chair Margaret Mathews said the change would add that lawyers would have a conflict when the attorney has a “significant personal relationship” with the counsel for the opposing party, unless the client gives informed consent. The rule already prohibits that representation if the opposing lawyer is a blood relative or related by adoption or marriage.

The revised comment specifies that “a significant personal relationship includes a domestic partnership or a romantic relationship.”

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