Associate Leaves Unfriendly Departure
- Cool Heads Must Prevail: It behooves all the members of the firm, partners and associates, to keep cool heads and to act ethically and graciously when a member is departing and to keep any disagreements within the confines of the law firm. This type of behavior minimizes the problems and quickly ends controversy.
- Grabbing clients and leaving: Don't do it! Neither the firm nor the associate has a "right" to a client. The decision is the client's.
- Client Notification: While the firm should jointly with departing associate inform departing associate's clients of the imminent departure in writing and explain that the clients have the right to choose which lawyers will continue with their cases, it is possible that the firm will refuse to do so. This leaves the departing associate in a ticklish situation. The departing associate must decide whether or not to contact the clients he or she represented in his or her old firm. Rule 1.16 provides that an associate must act to protect his or her clientâ€™s interests, including giving notice when leaving a firm. Furthermore, Rules 7.2 and 7.3 allow an associate to directly solicit business from his or her current and former clients. However, Rule 4.2 prohibits communication with a party the associate knows to be represented by another lawyer, who technically could include clients of the former firm, and Rule 7.3 prevents the attorney from soliciting clients with which the associate did not have a prior professional relationship. The ABA has said that working on a legal matter with a client in conjunction with other firm attorneys, entailing little or no direct contact with the client is insufficient to meet the standards of Rule 7.3. See ABA, Formal Opinion 99-414 (1999). Improper notice may result in a disciplinary action under Rule 8.4 against the associate. As a word of caution, to avoid causes of action sounding in other areas of law, a departing associate must be careful to limit the notice to his or her clients to mere notification of the associate's departure and the ability of the client to either remain with the firm or leave with the associate. See Graubard Mollen v. Moskovitz, 86 N.Y.2d 112, 653 N.E.2d 1179 (1995) (where the court approved of the notification to former clients that informed the client of the attorney's withdrawal and told the client of their right to choice of counsel). Compare Siegel v. Arter & Hadden, 85 Ohio St. 3d 171, 707 N.E.2d 853 (Ohio. Sup. Ct. 1999) (showing the attorney's conduct in giving notice may result in unfair competition and trade secret counts), Pa. Bar Ass'n Comm. on Legal Ethics and Prof. Resp. Joint Op. No. 99-100 (advising that an attorney's conduct in giving notice may result in a breach of fiduciary duty and tortious interference with the former firm's relationship with their clients).
- Mediation or Arbitration: Ideally, upon hiring an associate, the law firm and associate would have executed an employment contract providing for mediation or arbitration in the event of a disagreement when the associate departs. However, in the absence of an employment contract, if the law firm and departing associate cannot agree on issues, such as the fee arrangements regarding the files the departing associate is taking with him or her, the parties should consider mediation or arbitration.