October 25, 2018
California’s New Rules: How Communication Rules Impact Attorney Departures
As most of you likely know by now, on November 1, 2018, the new California Rules of Professional Conduct will go into effect changing the regulation of the practice of law for all California attorneys. The significant changes to the prior rules and the enactment of some entirely new rules will have a tremendous impact on all California attorneys. Here, we will analyze the effect of the new rules on attorney departures and law firm transitions. In this post, which is one in a series, we will examine how the new Rule 1.4, Communication with Clients, will impact attorney transitions.
Communicating with Clients about the Departure
Current, and soon to be former, Rule 3-500, is at the center point of an attorney’s obligation to timely notify clients about changes in their representation, including news about an attorney’s departure. Rule 3-500 explicitly requires attorneys to keep clients “reasonably informed about significant developments relating to the employment or representation.” This language, which was not included in prior versions of the California Rules of Professional Conduct, mirrors obligations discussed by the State Bar of California’s Committee on Professional Responsibility and Conduct (COPRAC) in its Formal Opinion 1985-86. “[W]henever there is a material change in the representation of the client caused by a change in an attorney’s employment status, all members of the Bar involved directly in this change have a responsibility to see that the client receives the protections required by this rule, including timely and accurate notice of the change. The policy behind the notice requirement is to allow the client an opportunity to be advised of the changed status of the attorneys so that the client can make an informed choice of counsel. (citing Jewel v. Boxer, supra, 156 Cal.App.3d 171 and Little v. Caldwell, supra, 101 Cal. 553, and referring to former Rule 2-111(A) related to an attorney’s duties when withdrawing from employment.)
The new Rule 1.4 includes almost identical language to 3-500, identifying the duty to keep clients “reasonably informed about significant developments relating to the representation,” [Rule 1.4(a)(3)], but Rule 1.4 also includes specific information about what to communicate to the client and how an attorney should do so. This expansion of the Rule 3-500 is more consistent with the model rules, although the “significant developments” language is unique to California.
Communication Should Permit Client to Make Informed Decisions about the Representation
For example, Rule 1.4(b) states: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” This new language expands upon the attorney’s obligation to not just communicate about “significant developments relating to the representation,” but do so in a manner that permits a client to “make informed decisions regarding the representation.” Rule 1.4(b) articulates what the ABA and other ethics opinions agree is a critical factor in communicating with clients about attorney departures or transitions. The goal is not just to communicate to the clients that there will be a change in representation, but to explain the significance of this change in a manner that allows each client to understand the impact the change will have upon the representation, and, where applicable, to make an informed decision about their choice of counsel going forward.
Communication Should Advise Client of Limitations on Representation
In another new subsection, Rule 1.4(a)(4) now requires attorneys to “advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” Now, attorneys must advise clients about limitations on their representation, such as what they cannot do for the client or related to the representation. For departure matters, this rule highlights the importance of communicating clearly to clients about whether the attorney or the existing law firm is willing and able, or unwilling or unable, to continue to represent a client once an attorney leaves a firm. For example, the departing attorney needs to be sure that she has the skill, support, and resources necessary to handle the client’s matter at a new firm if the client chooses to transfer its matter to the departing attorney. Similarly, the law firm must ensure that there are other lawyers within the firm with the experience and ability to handle the client’s matter once the departing lawyer leaves the firm.
While the new duties embodied in Rule 1.4 regarding communicating with clients do not significantly alter the landscape of attorney transitions, they highlight essential information that an attorney needs to communicate to clients with respect to any change in representation. Importantly, attorneys and law firms must be mindful of these duties, their other ethical obligations to clients, as well as fiduciary and legal duties to their partners, when determining how and when to notify clients of changes in representation.
Dena M. Roche
O’Rielly & Roche LLP