Left to right: Randy Evans and Shari Klevens, Dentons partners ()
In today’s legal environment, it has become extremely unlikely that an attorney will stay at a single law firm throughout her entire career. Instead, attorneys now frequently change firms in search of better opportunities or better fits. This is especially true for associates, who may change firms multiple times early in their career before they find the right home.
While there are perhaps fewer issues and potential ethical complications when an associate changes firms (as compared to partners), there are still some restrictions that may apply. For example, even a seemingly innocent conversation from an associate to a client regarding the associate’s departure could be perceived as an improper solicitation of a firm client. Typically, associates owe a fiduciary duty to their current firm up until their actual departure.
Further, in departing a firm, most associates will take care not to copy or take client files without prior authorization by the client. Unless the client directs otherwise, their files will usually remain under the control and custody of the law firm. An attorney taking files without prior authorization risks not only breaching their fiduciary duty to their current law firm, but also may violate the duty of confidentiality owed to the client by taking confidential information to another law firm without the client’s informed consent. See California Rules of Professional Conduct, Rule 3-100(A).
Besides these general restrictions, the issues for associates to address when changing firms can vary greatly depending on the nature of the firm. For example, attorneys in large firms may have a template governing their departure since such firms routinely have attorneys join and leave. In such firms, because there is more likely to be protocols in place for departures, there may be fewer ethical issues for associates to address on their own.
However, a move to or from a smaller firm may look very different. Because smaller firms may not have the same resources or experience with lateral moves, associates may have to be more proactive to make sure that they and their clients are protected. Below are some key issues for associates to consider when switching firms.
Get a Written Offer
First, if not otherwise provided, associates may request to receive a formal, written confirmation of an offer of employment from the new law firm. During the last several years, there have been unfortunate situations where firms have extended informal offers only to withdraw them as the economy weakened. To avoid the risk of leaving one firm only to have the hiring firm change its mind, many associates will request formal confirmation of the offer of employment.
After receiving the written offer, associates will usually then inform their current firm of their departure (usually in writing) and discuss a date for their departure. In most situations, the departure will remain amicable, and there may even be some flexibility for the transition from the old firm to the new firm. However, in those firms where the workload cannot be as easily absorbed, news of a departure may be greeted with dismay.
Regardless of whether the departure occurs immediately or after a defined period of time, the associate can help ensure that there is no ambiguity regarding the extent of their duties by specifying in writing the exact date on which the relationship with the old firm ends and the relationship with the new firm begins. Having definitions in place helps the associate if, down the road, he or she ever needs to define exactly when a professional relationship began or ended.
Because they are generally not involved in their firm’s purchase of a legal malpractice insurance policy, associates are often less aware of potential insurance issues when changing firms. However, without the right insurance, changing firms could result in a loss of coverage for associates.
Generally, law firms purchase insurance that provides coverage for claims made against associates based on acts or omissions that occurred before the associate left the firm. Thus, if an associate leaves a firm and that firm and associate are sued for legal malpractice, in most instances the firm’s policy will provide coverage to the associate for those acts and omissions that occurred while the associate was employed by that firm.
However, if there is any doubt about the scope of coverage for acts that occurred at the prior firm, the associate may consider purchasing “tail” coverage from the old firm’s legal malpractice insurer. While this may not be necessary in most circumstances, some associates choose to make such a purchase given the potentially severe consequences of a loss in coverage.
Communications With Clients
As the attorney-client relationship is uniquely personal in nature, it can continue even after an associate has left the law firm. Thus, it is important that the client is notified in writing if the attorney-client relationship has ended as a result of the associate’s departure from that law firm.
In most situations, the old law firm and the associate agree on the manner and substance of the communication to the clients regarding the associate’s departure. However, if that does not occur, it may be incumbent on the associate to inform the client. This communication can simply notify the client that the associate has joined a new firm and provide the associate’s new contact information.
For clients of the old firm, the associate can inform the client that communications should be directed to the old firm since the associate no longer represents the client. However, if the client wants to remain a client of the associate, then the associate should advise the client that it will need to terminate the old firm and hire the new firm. The departing associate should also take steps to make sure that he or she is not running afoul of the rules regarding attorney solicitation of existing clients.
Where the client wants to join the associate at the new firm, the client can notify the old firm in writing and direct that firm to send the client’s files to the new firm. The associate can also work with her new firm to confirm the retention, including potentially through the execution of a new engagement letter.
While changing firms should be a smooth transition for associates in most circumstances, associates should nonetheless be aware of the potential risks. By making sure that the issues discussed above are addressed, associates can avoid these risks and focus on acclimating themselves at their new firm.