Prior Planning. All lawyers owe their clients a duty to make arrangements to provide for the clients' interests in the event of the lawyer's death, disability, impairment, or incapacity. If the partnership has not properly provided for such events, obvious consequences would include client complaints, delays, staff confusion, and misdirection. In turn, these circumstances might lead to grievances, breaches of duty, and malpractice claims.
Most commercial malpractice carriers require lawyers to make prior arrangements, and prior planning can reduce future malpractice claims against the lawyer or the lawyer's estate.
A partner may voluntarily withdraw from the partnership. Two examples of language covering timing and client transfer are as follows:
1. A partner may voluntarily withdraw from the partnership. In such event the partner shall give written notice of intention to do so no fewer than sixty (60) days prior to the effective date of withdrawal. Thereafter, the partner shall cooperate fully in completion and turnover of all matters in which he or she is involved and generally assist in diminishing any adverse effects to the clients or the partnership by reason of such withdrawal. The partner further agrees not to advise the firm's clients of his or her withdrawal, but will permit the firm to first notify such clients. The partner also agrees that all files belong to the firm and will comply with the procedures for withdrawal established by the management committee.
The payment of the basic payment applicable to such withdrawing partner shall be made within one hundred twenty (120) days after such amount has been determined.
A withdrawing partner agrees that he or she will not solicit or cause or permit others to solicit on his or her behalf any of the firm's active clients or accept engagement from such clients without first notifying the firm. If such active client or clients owe fees to the firm, the withdrawing partner shall cooperate with the firm in effecting payment of such accounts. The partner further agrees that upon departure from the firm, he or she will not take any client lists, schedules, files, or other property of the firm.
2. A partner may withdraw from the firm at any time, provided that he or she give ninety (90) days written notice of the intention to do so. The firm, at its sole discretion, may accelerate such notice to the date it is received by the firm.
All client files are the property of the continuing law firm and will be released to a withdrawing partner only upon written authorization of the client.
Rule 1.4 SCRPC, requires that lawyers keep clients reasonably informed about their cases and explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
A lawyer contemplating a transition arrangement should incorporate notice to current clients. One way to handle client notice is to include a statement in the Client Engagement Letter or fee agreement.
Execute Employment Agreements spelling out division of fees at dissolution.
Conflicts. Be mindful of conflict issues. A lawyer may not disclose confidences and secrets or use confidences and secrets to the benefit of a third party or for the lawyer's own interests, without the client's consent. Partners and employees are bound by the lawyer's duty to protect confidences and secrets within a law firm. Rules 1.6, 1.7, 1.9, and 1.10.
The firm must inform departing partner's clients of the imminent departure in writing and explain that the clients have the right to choose which lawyer will continue with their cases. It is best if these letters are Joint Letters from the law firm and the departing partner. The letters must inform clients of time limitations and time frames and where they can pick up files. See Rule 1.4, SCRPC