January 12, 2015
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?
There are several factors to consider when analyzing whether it is appropriate to provide a departing attorney with a copy of his/her entire firm email folder upon the attorney’s departure. First, the firm has an obligation to ensure that clients who choose to transfer their client matters to the departing attorney’s new firm have all the communications relevant to their matters in the hands of their counsel of choice, so that that attorney can most effectively represent them. (California Rules of Professional Conduct, Rule 3-700.) However, the firm also has an obligation to maintain the confidentiality of all communications with firm clients related to matters that will stay with the Firm. (California Rules of Professional Conduct, Rule 3-100.) In deciding whether to provide an attorney with a copy of his/her entire firm email folder upon their departure, the firm must balance these obligations. If the firm were to allow the attorney to take his entire email folder with him upon his/her departure, the firm would need to make sure that any communications contained in that folder from firm clients that will stay with the firm are adequately protected.
Second, and separate from the firm’s obligations regarding maintaining the confidentiality of client communications, the departing attorney has an independent ethical obligation to keep all communications with clients, past and current, confidential. This obligation is found in both the California Business and Professions Code, Section 6068(e)(1) and California Rules of Professional Conduct, Rule 3-100, but may also be contained in the departing partner’s partnership agreement with the firm. As a practical matter, however, it is important to remember that the content of any email communications that were sent to the departing attorney in the scope of his representation of a client, either on a current or a former matter, were and are known to him/her regardless of whether he/she has a copy of a specific email containing that information.
The third and probably most significant factor to consider relates to the firm’s and the departing partner’s obligation to avoid the inadvertent disclosure of confidential client communications. In other words, to the extent that the firm transmits any portion of the departing partner’s firm email folder to the attorney upon his/her departure, the firm should ensure that the transmission to the attorney occurs in a secure manner. The firm also has an interest to ensure, after it has provided the departing attorney with such emails, that the attorney maintains the confidentiality of those email communications. For example, if the transmitted emails are later uploaded or transmitted somewhere by the departing attorney, the emails should be stored on a network with adequate security. In addition, the transmitted client emails should not be commingled with the departing attorney’s new firm’s email or deposited on his/her new firm’s email system if such a system is accessible to third parties handling matters that have the potential to conflict with any client’s interests.
Keeping these issues in mind, and given the practical difficulty of reviewing each of a departing attorney’s individual email transmissions to determine what are appropriate to produce (which could cause serious delays in providing that attorney with copies of important attorney-client and case related communications), the firm could protect these competing interests by providing the departing attorney with a copy of his entire email folder (perhaps limited to a certain time period) if the attorney signs an agreement affirming his/her obligations to treat such communications as confidential and privileged upon his/her departure. The attorney should also agree to take all reasonable steps necessary to avoid their inadvertent disclosure by specifically addressing the issues mentioned above.
This is an matter that likely can, and should, be encompassed in a separation agreement between the parties that resolves all issues related to the partner’s departure. Such a protocol, as described above, would help to promote continuity of representation to firm clients whose matters were being handled by the departing partner prior to his or her departure from the firm, as well as protect the confidential nature of any email communications and avoid the inadvertent disclosure of confidential information to third parties. It makes the most sense in situations where all or a significant part of the departing attorney’s client matters will be transferred to him or her at a new firm.