Formal Opinion 116 of the Colorado Bar Association Legal Ethics Committee (cobar.org) is an excellent guide to the legal ethics considerations surrounding a lawyer’s departure from a law firm. Anecdotal evidence suggests that many Colorado lawyers are aware of and follow Opinion 116 in these circumstances, or at least when there are clients who may wish to be represented in the future by the departing lawyer. This is all to the good.
In many instances, a lawyer’s departure from a firm is entirely free of the vitriol that marks some departures and often leads to embarrassed clients and wasteful, pettifogging litigation. If the lawyer or lawyers who manage the firm and the departing lawyer or lawyers are committed to making the departure peaceful and smooth, there is no reason they cannot meet and exceed the minimum standards set by the Colorado Rules of Professional Conduct. These lawyers should consider agreeing to the following rules, some of which state the minimum ethical standards and some of which exceed them:
The departing lawyer may not solicit clients until she has notified the firm she is leaving, and the only clients she may solicit are those with whom she formed an attorney–client relationship while at the firm. At that point, both the firm and the departing lawyer may solicit these clients.
Neither the departing lawyer nor the firm will lie about or disparage the other to clients or other people. Absent urgent and serious circumstances, neither the departing lawyer nor the firm will file, threaten or even hint at the filing of a grievance during the departure process.
The firm will provide the departing lawyer with contact information for clients with whom the departing lawyer formed an attorney–client relationship. The firm will provide clients and others who call contact information for the departing lawyer upon request.
Prior to the departure of the departing lawyer from the firm, or as soon as possible afterwards, the departing lawyer and the firm will send a neutral joint written notice (which may be in electronic form) to clients of the departing lawyer asking them to choose among the firm, the departing lawyer or another lawyer altogether for continued representation in pending matters. Client responses will be directed to both the departing lawyer and the firm.
A unilateral notice is appropriate when either the departing lawyer (including that lawyer’s new firm) or the firm (a) is not competent or lacks the resources to continue the representation, (b) does not desire to continue the representation, or (c) enjoys a longstanding relationship with the client such that the client’s choice would be obvious. The departing lawyer and the firm will be reasonable in assessing their ability to continue the representation and the best interests of the client. A copy of the notice and response will be made available to the non-sending party upon request.
Until a client makes a choice of representation, the departing lawyer and the firm will have free access to the client’s files and will arrange for the completion of time-sensitive tasks and deadlines. Both the departing lawyer and the client may make and retain a copy of the client’s file. If the firm terminates the departing lawyer’s computer access, the firm will provide the departing lawyer alternate means of access to the client’s files and to other information necessary to carry out the representation, such as documents filed on ICCES.
If a client chooses representation by the departing lawyer, the firm will respect that choice and promptly arrange for the transfer of the file (if necessary) to the departing lawyer as well as any funds held in the firm’s trust account to which the firm is not entitled, and any other client property held by the firm. If a client owes an outstanding balance to the firm, the firm will not refuse to transfer the file by asserting a statutory retaining lien. Thereafter the firm is entitled to no further information regarding the client’s matter.
If a client chooses representation by the firm, the departing lawyer will respect that choice and inform the firm about any time-sensitive tasks for deadlines. The departing lawyer will be generous in assisting in the transition, for example by preparing transfer memorandums or sharing strategies to assist in the representation. Thereafter, the departing lawyer is entitled to no further information regarding the client’s matter.
If a client who owes an outstanding balance to the firm chooses continued representation by the departing lawyer, the firm may assert a charging lien and otherwise seek to collect the balance. With respect to all money paid by the client to the departing lawyer (or the departing lawyer’s new firm), the departing lawyer will turn over that money to the firm until the unpaid balance has been retired.
As necessary following a client’s choice of representation, the departing lawyer and the firm will promptly withdraw or substitute counsel in pending cases. Unless and until a lawyer has withdrawn from representation—or, with respect to cases in litigation, received a court order to that effect—the lawyer is responsible for the representation.
When a client chooses the departing lawyer to continue to handle contingent fee cases, the departing lawyer and the firm will attempt to agree on a fair division of any recovery by themselves. If they do not reach agreement, they will submit the controversy to mediation or arbitration or both and attempt as much as possible to leave the client out of it. In the dispute resolution process, they will cooperate in providing access to the information necessary to resolve the dispute, for example by agreeing to maintain the confidentiality of the client’s information. They will attempt to resolve the dispute as promptly and as economically as possible and, if they are represented by counsel in the dispute, will direct them to act accordingly.
Even after a client has terminated representation by either the firm or the departing lawyer, the terminated firm or departing lawyer, as the case may be, will ensure that communications directed to the client are promptly communicated to the client and otherwise take reasonable steps to protect the client’s interests.
The firm and the departing lawyer will cooperate to ensure compliance with Colo. RPC 1.16A regarding the retention of closed client files. The departing lawyer will be responsible for the maintenance, return or destruction of closed files pertaining to clients for whom the departing lawyer was lead counsel. The firm will be responsible for the maintenance, return or destruction of closed files pertaining to all other clients.
Subject to copyright or other applicable law, the firm will permit the departing lawyer to take with her copies of documents or computer files she created for use in her practice.
In all respects, the firm and the departing lawyer will act toward one another in a spirit of good faith, cooperation and civility.
By Alec Rothrock, a shareholder with the Greenwood Village law firm of Burns Figa & Will, P.C. and an adjunct professor of legal ethics at the University of Denver Sturm College of Law. He practices in the area of legal ethics and the law of practicing law. He is a former chair of the Colorado Bar Association Ethics Committee.