September 27, 2013
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.
However, the opinion also noted that the law firm had an obligation to immediately forward to the departing partner all emails related to client matters that the departing partner was handling or that related to the departing partners current practice. The Committee also opined that automatic reply messages should include the departing partners current contact information so that all email senders are aware of the departing partner’s change in employment.
This dispute revolved around the issue of whether a law firm could ethically read and review all email correspondence received to the email address of a departing partner instead of simply forwarding the emails to the departing partner directly, without reading them, as the departing partner had requested. In this situation the Committee found that in order to comply with various ethical duties and responsibilities to the clients, “some degree of interaction with the substance of messages to [the departing partners] old email address would, as a practical matter, be necessary in order for the [law] firm to sort out its responsibilities to current clients, former clients, those clients who have elected to follow [departing partner], as well as to third parties.” (See Philadelphia Bar Association Professional Guidance Committee, Opinion 2013-4, Pg. 4.) However, the Committee also notes that “there is an obligation on the part of the law firm to immediately provide to inquiring clients and former clients sufficient information that would allow the client to make prompt contact with the ex-partner prior to offering the firm’s services as an alternative.” (Opinion 2013-4, Pg.4-5.) The Committee also cautioned against not forwarding email received that is clearly meant for the departing partner. Finally, it noted that the law firm should include the current contact information for the departing partner in any reply email messages that are sent in response to an email directed to the departing partner.
Although this ethic opinion did not derive out of the California State Bar’s Committee on Professional Responsibility and Conduct, it is instructive on the handling of law firm email accounts belonging to departing partners because the ethical rules upon which it is based are very similar to the California Rules of Professional Conduct. The Philadelphia Bar Association Committee stated that the principles upon which it based its opinion are the “duties to protect the interests of the clients in their legal matters during the period of transition” when partners transition to a new firm. In addition, the Philadelphia Committee also noted that “both a departing lawyer and the old firm owe an ethical obligation to ensure that the interests of the clients in active matters are competently, diligently and loyally represented” at all time periods related to a transition. The California Rules of Professional Conduct have also emphasized attorneys’ fiduciary and ethical duties to keep their clients “reasonably informed about significant developments relating to the employment or representation,” as well as to promptly provide to a client all correspondence related to representation of the client once the attorney has been discharged. (California Rules of Professional Conduct, Rules 3-500, 3-700(D).) Several California ethics opinions have also emphasized that whenever there is a change in a partner’s employment status, all the attorneys involved need to act in the “best interest of the client” with a mind towards protecting the client’s right to receive timely notice of the change, to respect the client’s right to the counsel of their choice and to timely support the transition of all relevant information to the departing attorney if a client choose to leave with the departing attorney. (State Bar of California, Committee on Professional Responsibility and Conduct, Formal Opinion 1985-86, Formal Opinion 2007-174.)
This Philadelphia ethics opinion also stressed that “considerations of substantive law” may influence the ethical analysis of what a law firm’s obligations are with respect to a departing partner’s email in this situation. This is equally true if this dispute arose in California. For example, a firm’s partnership agreement, its written employment practices or other agreements the firm may have with the departing partner could contain language regarding the handling of firm emails that changes this analysis or its application to a departing partner. Therefore, whether you are a departing partner or a law firm dealing with a recent departure, it is important to closely analyze these issues and/or consult with someone who specializes in these matters to avoid any adverse consequences, or potential litigation, arising out of the handling of a departing partner’s emails.