New ABA Ethics Opinion Further Strengthens Rainmakers

A new opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility outlines recommended behaviors for firms and attorneys when lawyers decide to move on from their firms.  Published December fourth, the piece emphasizes the power of the client and encourages all parties to cooperate to serve the client’s best interests.

“Clients are not property,” the Committee writes. Thus, the best practices set forth in this opinion include the delivery of a joint letter from the firm and the departing lawyer to each client with whom that lawyer has had “significant contact” (a term further defined by the ABA). This notice would announce the change in affiliation and explain the client’s options in their future representation. Notably, the opinion disapproves of the practice of offering to replace a departing lawyer with another lawyer at the firm “unless the firm has the ability to retain other lawyers with similar expertise.”

The Committee also addresses the need for cooperation in sharing resources, insisting that firms not withhold access to systems or personnel once an attorney has given notice.  The opinion emphasizes every lawyer’s duty to provide all relevant records to the counsel who will be handling the case moving forward.

Overwhelmingly, the ABA’s opinion reinforces the notion that clients are and should be in control of their cases.  It is therefore the responsibility of the firm and the departing attorney to smoothly transfer the information and commitments involved. Detailed and timely communication allows the client opportunity to make informed decisions in regard to changes at the firm.

If the power ultimately lies in the hands of the client, it stands to reason that the most powerful lawyer is the one who has the strongest client relationship. Although the Committee’s opinion is advisory in nature, it could be cited with some frequency by lawyers who are leaving firms and taking clients with them.