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You are considering leaving your law firm. A firm with a broader platform, greater depth and breadth of practice areas, and a national or international reach will allow you to build your practice and your income. The traditional career path — law student joins firm out of law school, becomes partner, and retires there 40 years later — has become an anachronism. So what’s the downside to leaving? The problem lies in how you leave your law firm. The dilemma is rooted in the multiple, often conflicting, fiduciary duties under which lawyers operate. A partner owes fiduciary duties to his law firm, as well as contractual duties under the partnership agreement, for as long as he remains at the firm. However, lawyers also owe fiduciary duties to their clients. When lawyers are in harmony with their firm, these duties operate on parallel tracks. For departing attorneys, however, the tracks intersect and collisions may occur. The two most common difficulties relate to the departing lawyer’s premature solicitation of both clients and law firm personnel, including attorneys and staff. Another problem involves the property that the departing attorney may take to the new firm. Departing lawyers must act carefully to avoid harming one constituency in the service of the other. A misstep may provoke a dispute with the former firm, complicating the departing attorney’s life and that of the new firm at a time when transition issues already are complex and stressful. Further complicating the matter, jurisdictions often differ as to precisely what behavior is acceptable. Solicitation of clients is the big-ticket item here. The new firm will have little use for its new partner without his major clients. That’s why the departing attorney is so tempted to maximize the likelihood that his major clients and matters will move to the new firm. What can the departing lawyer do without running afoul of his obligations to the soon-to-be-former firm? The firm cannot prevent clients from moving their legal work to the departing attorney’s new firm. Law firms and lawyers do not “own” their clients. However, lawyers ordinarily are prohibited from soliciting clients to move to the new firm while the lawyer is still a partner at the old firm. Accordingly, an attorney ordinarily cannot ask his client, “Will you come with me to my new firm?” before his resignation is effective. So here is the conundrum: On the one hand, the departing attorney (as well as the new firm) wants the comfort that most of the business will move with him, but on the other hand, the departing attorney cannot prematurely solicit clients to move to the new firm. ROCK AND A HARD PLACE In addition, there is still another concern here. Lawyers have a duty to avoid acting in a manner which will prejudice their clients. Lawyers regularly handle active, time-sensitive assignments (for example, a complex transaction due to close soon or a fast-approaching trial date) in which delay or disruption can hurt the client’s interests. Moreover, lawyers have a responsibility to keep their clients informed of information important to their matters. So, what is a departing lawyer to do when failure to provide advance notice of the lawyer’s departure might prejudice the client’s matter, but premature solicitation would breach the partner’s duties of loyalty to his current firm? The pressure between this rock and that hard place is intense, especially because the law ordinarily places the departing lawyer’s personal interests last in line. In these sorts of cases, it makes sense for a relocating lawyer to obtain advice from knowledgeable counsel about the correct and safe way to depart. Personal concerns almost inevitably cloud judgment and cause well-intentioned, careful attorneys to consider foolish actions. It is this very concern that has prompted most major law firms, as part of their routine conflicts-clearance process, to designate disinterested in-house counsel to sort through potential conflicts of interest as their lawyers seek to benefit not only the firm, but themselves, by bringing in new clients and matters. An answer to the dilemma exists. In most jurisdictions, a lawyer is permitted (and in certain circumstances may be required) to provide clients advance notice of the lawyer’s departure in the form of a Miranda-type disclosure. Clients may be told they have three choices: move their business with the departing lawyer to the new law firm, keep their work at the current firm, or move their work to a third firm. Importantly, this warning permits notice of departure, but not solicitation. If the departing lawyer crosses the line and encourages the client to move with him to the new firm before the resignation is effective, most jurisdictions will treat the communication as a breach of the departing partner’s fiduciary duty to the current firm. The departing attorney should make a careful record of such notice. If the lawyer’s departure degenerates into controversy, the communications in which “notice” was delivered may be the subject of intense scrutiny. Clients often are not clear about the distinction between “notice” and “solicitation.” They may be careless, or simply imprecise, in their rendition of what was said to them. FIRST THINGS FIRST Even if departing attorneys provide their clients with nothing more than the disclosure of the three options, some commentators and courts have indicated that “the preferred” way to handle this issue is to provide notice to the soon-to-be-former firm before the departing lawyer provides notice to the clients, in order to make the departure fair to the firm. Complicating the issue, some of these very authorities recognize that advance notice to the firm may not be feasible, especially where the lawyer’s announced departure is likely to result in acrimony. The attorney may be immediately escorted out the firm’s door, making it impossible to provide clients with advance notice. This contradictory view of “fair play” makes the departing lawyer’s determination of what to say and when to say it that much more difficult. The second major area of difficulty involves what departing attorneys can say to associates and staff before their resignation is effective. Often, a partner with substantial business has several associates who are integral to the clients’ matters. Indeed, whether the departing lawyer’s “team” is also moving to the new firm may impact some clients’ decision to move their business. Nonattorney staff (such as a longtime secretary) may also be important to the departing lawyer’s practice. What is the departing attorney to do? On the one hand, associates and staff at most firms are at-will employees and can leave the firm at their discretion. However, while they work for the firm, they are ordinarily considered firm assets. Accordingly, it is usually a breach of duty to the firm and often a breach of the partnership agreement for departing attorneys to solicit associates and staff while they are partners of the firm. Ordinarily, only after attorneys have departed may they solicit the former firm’s associates and staff. This restriction poses a dilemma for the attorney and the new firm. The departing lawyer often has ongoing, active matters in need of immediate attention, yet may land at the new firm with no one there to undertake the work he is bringing along. The new firm needs to be prepared to have personnel ready to work on the relocating lawyer’s matters in order to make the transition a successful one. A third issue confronting departing lawyers concerns taking property to the new firm. Plainly, the attorney cannot take the prior firm’s property. However, who “owns” certain items is not always clear. The firm’s client files are clearly off-limits. It is the clients’ responsibility, if they choose, to direct the transfer of their files to the new firm. But what about document templates and forms that the lawyer regularly uses and may even have developed? Are they firm or personal property? Lawyers frequently make mistakes here out of haste or carelessness. Here is an example that shows just how careful a departing attorney must be. Suppose the departing lawyer maintains client contact information on a BlackBerry that was purchased by the firm for the lawyer’s use. The contact information is not proprietary to the firm, but the BlackBerry might be considered firm property. The departing attorney should not throw the BlackBerry into his briefcase on the way out the door. Instead he should print out the contact information on his own time, at his expense, on paper that he has purchased, and leave the BlackBerry behind. There is a right way and a wrong way to relocate a practice, and unfortunately there is also much gray in between. Before embarking on a move, lawyers should become familiar with and diligently follow important ethical rules and fiduciary laws. They should obtain knowledgeable, independent advice where tough choices and difficult judgments need to be made. That way, they can avoid the mistakes of expediency and honor their obligations to all parties, notwithstanding the competing interests.
William Schuman, a partner in the trial department in the Chicago office of McDermott Will & Emery, has chaired the firm’s professional responsibility committee since 1994.

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