Trends and Analysis for Successfully Transitioning Lateral Partners
into New Partnerships While Minimizing Risk and Reducing Potential Liabilities

Handling of Client Files.

Nelson Levine v. Lewis Brisbois Just Settled: Firm Laptops and the Computer Fraud and Abuse Act – Lessons from A Recently Resolved Attorney Departure Case

As many attorneys who follow partner departures and lateral moves know, in 2014 a group of attorneys at Nelson Levine De Luca & Hamilton, LLC (“Nelson Levine”) in Montgomery County, Pennsylvania, left the firm to join Lewis Brisbois Bisgaard & Smith LLP (“Lewis Brisbois”), a California limited liability partnership. This departure resulted in litigation that serves as a primer on the Computer Fraud and Abuse Act, underscoring the importance of adding firm-issued laptops and the handling of other technology (often accessing confidential information) that attorneys regularly use, to the growing list of topics that firms and departing attorneys should address as part of the firm’s policies and procedures and in advance of any separation.
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Best Practices For Firms In Considering Whether to Provide a Departing Attorney with a Copy of His or Her Entire Mail Folder upon Departure from the Firm

Once a firm is given notice from a departing partner that the partner plans to leave the firm, there are a myriad of issues that need to be resolved prior to, and following, the partner’s actual departure. One important issue relates to the handling of the departing attorney’s email once he or she leaves the firm. Many departing partners who have been with their prior firm for a significant period of time and leave on relatively good terms often ask the firm to provide them with a copy of their entire email folder upon their departure. There are a variety of reasons for this request, but the most significant relates to the attorney’s need to have immediate access to all relevant communications related to client matters that will be following that partner to his or her new firm. However, even if a law firm is willing to comply with this request, is it appropriate to do so? And if so, what issues should the firm be concerned about with respect to the transmission of the partner’s email folder? More

Law Firms have Ethical Obligations with Respect to the Handling of a Departing Partners Email Communications and Account

According to the Philadelphia Bar Association’s Professional Guidance Committee, ethical rules permit a law firm to review a departing partner’s emails in order to determine what emails should be forwarded to the departing partner and what emails relate to current firm matters of which the law firm should be aware.  (See Philadelphia Bar Association Professional Guidance Committee, Opinion 2013-4.)  The Committee found that the departure partner did not have the right to insist that his/her former firm emails be simply bounced back to him/her without allowing the firm to first review all the emails.  More

Departing Partners and Client Files Part II: Transferring Client Files in the Digital Era

Not long ago client files consisted only of hard-copy documents in physical file folders and typically contained filed briefs, discovery, transcripts, correspondence and memoranda of law.  While there was a split in authority on whether attorney notes and drafts should be included as part of a client’s file, the California Rules of Professional Conduct states that essentially all substantive documents pertaining to the client and his or her case belong to the client.  (California Rules of Professional Conduct, Rule 3-700(D).)  Thus, if a client chose to follow a departing partner, the firm was required to transfer the client’s hard-copy files to the departing partner so that the client could continue to receive adequate representation. More

Departing Partners and the Handling of Client Files in California

A substantial body of case law and ethics opinions addressing the handling of client files has developed over the years surrounding the concept that a client’s file is a client’s property.  (Rose v. State Bar (1989) 49 Cal.3d 646.)  This notion is based on the underlying idea that clients may discharge an attorney at any time, with or without cause, in the interest of obtaining the successful prosecution or defense of a claim.  (Fracasse v. Brent(1972) 6 Cal.3d 784.)  Since effective client representation generally requires access to a client’s file, if a client chooses to follow a departing partner, the client’s entire file should be transferred from the law firm to the departing partner immediately.  (Rose v. State Bar (1989) 49 Cal.3d 646; California Rules of Professional Conduct, Rule 3-700(D).) More