Ethical Considerations For Departing Lawyers

					    ethiCs                  By DAVID I. GRuNFELD and EVIE BOSS COGAN

Ethical Considerations For Departing Lawyers
Can a laid-off attorney take originated clients
with him/her or do they belong to the firm?

             ou’re an associate in a law         communicate secretly with the client (or          firm’s client and from continued represen-
             firm, and you’ve just been told     with other lawyers’ clients with whom the         tation of the former client when the lawyer
             you’re being laid off. You have     lawyer is in contact) in order to solicit their   has actual knowledge of confidential infor-
             a few cases you’ve brought in,      departing with the lawyer. Of course, the         mation. Such conflicts may possibly be
 but have been working mostly on other           lawyer cannot and should not “bad mouth”          waived, by authorization from both clients
 lawyers’ matters, even though you have di-      the firm in any way, such as expressing or        with informed consent.
 rect contact with their clients.                implying that the firm is unable to handle
                                                 the matter at all or as well as the departing     Rule 1.10 imputes disqualifications to oth-
 Are the clients you originated yours to take    lawyer. As a substantive matter, any of the       ers in the firm. However, when a lawyer
 elsewhere, or do they belong                                                                                   joins a firm, the lawyer may
 to the firm? What can you tell                                                                                 be effectively screened from
 the other lawyers’ clients that                                                                                the matter, with written no-
 you’re in touch with? What                                                                                     tice to the appropriate client to
 can you say about the firm                                                                                     enable the client to ascertain
 you’re leaving? What restric-                                                                                  compliance. Hence, it is obvi-
 tions are there on applying to                                                                                 ous that a conflicts check must
 other firms?                                                                                                   be done with a firm to which
                                                                                                                the departing lawyer is ap-
 Most of these questions are                                                                                    plying, and appropriate safe-
 not specifically answered by                                                                                   guards put in place where the
 Pennsylvania’s Rules of Pro-                                                                                   new firm has matters adverse
 fessional Conduct, but some                                                                                    to the old firm.
 are, and others by ethics opin-
 ions, case law and commenta-                                                                                   Finally, it should go without
 tors.                                                                                                          saying that once these deci-
                                                                                                                sions are made, the departing
 First, under the terms of most                                                                                 lawyer and firm should work
 fee agreements, the client en-                                                                                 together in withdrawing and
 gages the firm, even though                                                                                    entering appearances, copy-
 one lawyer, such as the originator, may         foregoing could be actionable as the tort of      ing files, notifying opposing counsel and
 be working on the matter. Therefore, the        interfering with contractual relationships.       courts, reimbursing costs (a custom but
 departing lawyer cannot assume that the                                                           not a requirement), transferring escrowed
 file and client can be taken without fur-       A parenthetical issue, one of contract and        funds and the like.
 ther communication with the client and the      not necessarily ethics, is the ultimate divi-
 firm.                                           sion of the fee (if contingent), or a quantum     As difficult as things may be for a “down-
                                                 meruit claim by the law firm.                     sized” lawyer, that lawyer must follow the
 The way it has played out locally is that                                                         rules and take the high road in dealing with
 the lawyer, either jointly with the firm or     Another element in the ethics consider-           clients, cases and the firm.
 with the firm’s approval of the language,       ation is conflicts. Rule 1.9 addresses du-
 sends a letter to the client, advising of the   ties to former clients (mostly arising out of     David I. Grunfeld, an attorney with
 departure, and making it clear that the cli-    the continuing duty of confidentiality un-        Astor Weiss Kaplan & Mandel, LLP, is
 ent is the one who has the choice of go-        der Rule 1.6), and the Comment discusses          a member of the Professional Guidance
 ing with the departing lawyer, staying with     lawyers moving between firms. Basically,          Committee and the Editorial Board of The
 the firm, or making any other choice as to      when the new firm represents a party ad-          Philadelphia Lawyer. Evie Boss Cogan
 engagement of counsel. What the depart-         verse to the former client, then the lawyer       is a professor of business law at LaSalle
 ing lawyer should not do is to attempt to       is disqualified from involvement with the         University.

14 the philadelphia lawyer summer 2009
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