A lawyer’s departure from a law firm can be disruptive to client relationships and representations. Generally, the client in ongoing matters must be given the choice between staying with the firm, going with the departing lawyer who handled the matter, or retaining new counsel. But until that choice is made, who owes what duties to the client?

The answer is both the law firm and the departing lawyer owe ongoing duties of competence, diligence, communication, and of course, confidentiality. Even if the departing lawyer was the main client contact, the law firm continues to have a contractual relationship with the client by virtue of the engagement agreement. See Cal. State Bar Form.Opn. 2014-190 However, the departing lawyer still owes fiduciary duties to the client even after departure, notwithstanding the fact that the client has made the choice to stay with the law firm. Ibid; Cal. State Bar Form.Opn. 2020-201, fn. 13. In short, during the transition period, both the departing lawyer and the law firm owe the client a duty to communicate the impending (or in the case of abrupt departures, existing) change in employment, and an overarching duty to protect the client against reasonably foreseeable prejudice while the client considers the available options.

California State Bar Formal Opinion 2020-201 provides excellent guidance regarding the relative duties during this transition period: https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL-2020-201-13-0003.pdf.

Essentially, cooperation is key. The preferred means of cooperation is initially accomplished through a letter issued jointly by the departing lawyer and the law firm to the client containing the following information:

• The departing attorney(s)’ contact information;
• The departing lawyer’s anticipated area of practice;
• The date of departure;
• Whether the law firm will continue to handle similar matters;
• Who will be responsible for ongoing legal work during the transition period;
• That the client has the right to decide who will complete or continue his or her legal matters;
• That the client has the right to select the law firm, the departing lawyer(s) or other counsel of their choice to handle the client’s legal matters; and
• That the client may have all of the client’s files, papers and property delivered to the client or to whomever the client wishes to handle his or her legal affairs

If the departing lawyer and law firm cannot agree on a joint letter, each may communicate the requisite information without urging the client to sever the relationship with the other; disparaging the other, or making false or misleading statements. See ABA Form. Opn. 99-414. If the departing lawyer or the law firm does not or cannot continue the representation, notwithstanding the client’s stated choice, withdrawal rules must be followed. Cal. State Bar Form.Opn. 2020-201.

Finally, if the client elects to move with departing lawyer the departing lawyer must be mindful of conflicts of interest in bringing the client to a new firm. ABA Formal Opinion 09-455, entitled “Disclosure of Conflicts Information When Lawyers Move Between Law Firms,” provides guidance on how to best navigate disclosure of confidential information to avoid conflicts.

Cassidy Chivers is a shareholder at Barron & Newburger PC and leads the firm’s Attorneys Risk Management practice group. Cassidy is Certified Specialist in Legal Malpractice and a member of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC).