In the world of lawyers and law firms, attorney mobility is a continuing reality. Thoughtful lawyers who plan to depart their law firms are prudently getting advice on how to comply with their legal and ethical obligations to the firm and to their clients as part of the departure process. Law firms that have comprehensive plans in place to manage attorney and group departures can quickly and effectively respond to the news of a departure to help minimize its impact on the firm and clients. Yet one of the biggest questions raised by both law firms and lawyers during and after the departure process is: Can a partner plan to depart a law firm without breaching fiduciary duties to the firm? The short answer: Yes. More
into New Partnerships While Minimizing Risk and Reducing Potential Liabilities
California Partners Can Lawfully and Ethically Plan and Prepare to Depart from Their Law Firm
Mitigating Risks During Departure, Part 2: Minimize Exposure to Potential Claims Following a Partner Departure
It is important to remember that there are no absolute safe harbors protecting you from potential liability even when you endeavor to do all the right things when departing your firm. This is true in large part because there are often grey areas within the rules, tensions between those rules and your obligations to your firm, and a disparity between what is in the best interest of the firm versus the client, and even potentially you. In addition, you cannot control the response, behavior and/or motivations of certain firm members that may not want to see you succeed or are angry that clients may leave with you. Yet, making informed decisions, strategically planning and consciously navigating these grey areas helps to mitigate many of these risks.
As stated in part one on this topic, there are two main categories of risk a departing partner faces when considering his/her transition to a new firm. First, the risk that your firm will find out about the potential departure (or departure considerations) prior to the time that you are ready to tell the firm or provide formal notice. Second, the risk that your conduct with respect to your departure plans or considerations will expose you to potential claims by your firm or your clients of unlawful or unethical conduct. Sometimes attorney conduct will potentially implicate both categories of risks. Part two on this topic of mitigating risks analyzes ways to minimize your exposure to potential claims or allegations of misconduct following a partner departure. More
California Rules of Professional Conduct: Responsibilities and Restrictions on Departing Partners in Communication and Solicitation of Law Firm Clients
The California Rules of Professional Conduct place restrictions on an attorney’s conduct in soliciting clients for employment. The Rules define “solicitation” as “any communication concerning availability for professional employment of a member (of the State Bar of California) or law firm in which a significant motive is pecuniary gain,” whether in person or by telephone. (Cal. Rules of Professional Conduct, Rule 1-400(B).) Although generally client solicitation is prohibited, the rules provide that an attorney may solicit to “a former or present client in the discharge of a member’s or law firm’s professional duties.” (Cal. Rules of Professional Conduct, Rule 1-400(C).) More