The American Bar Association (“ABA”) Standing Committee on Legal Ethics and Professional Responsibility recently released Ethics Advisory Opinion 489 to offer guidance on the ethical obligations that arise when lawyers lateral from one firm to another. Transitioning
The opinion reflects lawyers’ propensity to switch firms due to financial incentives, work-life balance, and promotion potential. It focuses on the fact that lateral movement raises a host of ethics issues for both attorneys and their firms, as both have a duty to protect their clients’ interests during a transition. Previously, the process had sometimes been referred to as “cloak and dagger” with many decisions being made behind closed doors. The new opinion, praised by many in the legal community, provides clarity on how attorneys can leave ethically.
The opinion emphasizes attorneys have the right to switch firms, and that ethics rules do not allow for non-competition clauses in agreements. When a lawyer gives notice, the lawyer and the firm are ethically obligated develop a plan that is both orderly and flexible. Additionally, while firms can mandate a period of advance notice of departure, the time period cannot be so rigid to interfere with a client’s choice of counsel or how to proceed with a matter.
Moreover, the opinion states that a firm cannot prohibit the departing lawyer from soliciting firm clients. Florida has a specific Rule of Professional Conduct regarding such situations, where, absent a specific agreement, a lawyer leaving a firm must negotiate a joint communication to clients before unilaterally contacting them of their departure.
Overall, attorneys are more fluid in their careers, and it has become common to jump from one firm to another while bringing a book of business. These new ABA guidelines provide valuable guidance on how to ethically do so. Of course, the guidelines are advisory in nature, so make sure to check whether your state has specific requirements.
Read the full ABA opinion here.
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