Ethical Issues when Leaving a Firm to Go Solo

When leaving a firm to start your own practice there are serious ethical issues to keep in mind. The fastest way to ruin your solo practice is a disciplinary action or disbarment. Heed these tips and read your local rules of professional conduct to avoid ethical problems when you leave your firm to start your own practice.

Stealing Clients

Most states have very strict rules about advertising and soliciting clients. Often times lawyers are strictly forbidden from making real time client solicitations. The rules exist to avoid door-to-door lawyers popping up all over the country, and to keep clients from being pressured into representation. The rules make sense, and it is probably a prohibition most are familiar with. But when the time comes to leave a law firm, it’s an easy rule to break. After putting in your notice, if you’re out to lunch with a client and mention that you are leaving the firm, that’s fine. Yet asking the client to stay with you at the new firm is a form of solicitation, and could land you in ethical hot water.

Instead of mentioning the change to clients over lunch, I recommend sending them a letter. In the letter you can include your new contact information, and it’s less awkward than dodging an inadvertent solicitation over lunch. But be careful. You still cannot use your firm’s postage, envelopes, or resources to contact the clients about your change of employment. In an extreme case, one attorney from Maryland was disbarred for his actions while setting up his solo practice. The attorney altered computer records to make it appear that certain cases were closed in order to solicit the clients himself. He also used the firm’s resources to find new clients and send solicitation letters to the current clients. Definitely a good lesson in what not to do.

Taking Work Product

If you are coming from a firm with a well-rounded portfolio of sample briefs, orders, memoranda, and other court filings, it could be tempting to copy all of those files and take them with you. More likely than not, those templates are the result of work done by other attorneys or paralegals at the firm. That makes them company property, and not ripe for the taking. Of course, this doesn’t stop most attorneys. After all, how would someone know you took a template?

That being said, I advocate ethical behavior, and as my mother would say: how would you feel if somebody stole your work product?

Giving up Early

You may have given your two weeks notice in anticipation of opening your own firm, but that means you still have two weeks left with your current firm. Your decision doesn’t toll any statutes of limitations or answer interrogatories. It is your ethical and professional responsibility to zealously represent your clients until you leave. Of course, from a realistic standpoint, you might not give one hundred percent once you’ve decided to leave. Before you sail off into the sunset, make sure there is an attorney ready to take over your current caseload. More importantly, talk to that attorney and bring them up to speed on the case. Notify them of any pre-trial conferences, depositions, or filing deadlines coming up in the next six to eight weeks. That will help the incoming attorney blend your responsibilities with her own to make sure nothing slips through the cracks. It’s easy enough to miss deadlines on your own cases, so make things easier on your clients and your successor by taking some time and getting everything organized before you leave.

(photo: http://www.flickr.com/photos/samiksha/445070705/)

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  • A couple of clarifications may be helpful to readers here. When a lawyer is leaving a firm, solicitation is not directly an ethics issue. Under the model rules (most jurisdictions), lawyers are permitted to solicit individuals with whom they have a prior professional relationship. Letters, phone calls, and lunches are generally all fair game with current and former clients. A lawyer planning to leave a firm has a different problem: solicitation of the firm’s clients may breach the lawyer’s common law fiduciary duty (partners and shareholders) or duty of loyalty (employees) to the firm. Solicitation of clients may be permitted after the lawyer has given the firm notice of her departure.

    A lawyer leaving one firm to start another may be willing to stick around for 2 weeks but should be prepared to be escorted out the door upon giving notice. Discipline authorities are rarely interested in the squabbling over lawyer departures or law firm breakups. Departing lawyers should be more worried about being sued by their former firms than about ethics complaints.