Ethics Committee Formal Opinion #1988/9-14
Client/File Retention – Transfer to a New Firm
February 9, 1989
ANNOTATIONS:
The Ethics Committee is prohibited from rendering opinions on past conduct. (Ethics Committee Rule 5)
A written announcement of an attorney’s change of employment is permitted under Rule 7.3 for clients previously represented. Under Shapero v. Kentucky Bar Association, 108 S.Ct 1916 (1988), the written announcement may go to all potential clients, so long as the communication is truthful, nondeceptive, and sent to potential clients known to face particular legal problems. (Rule 7.3)
A lawyer without consent or authorization is prohibited from communicating, in the course of representing a client, about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter. (Rule 4.2)
If a lawyer can fairly be said to have personally represented a client before leaving a law firm, then any sort of communication from the lawyer, written or oral, informing them of his or her new practice and their right to choose to be represented by him or her is permissible. The lawyer’s new law firm may communicate this information in writing only. (Rule 7.3)
QUESTION:
- Whether a firm from which an associate is departing has an obligation to inform clients on whose specific cases the associate was working of his departure and of their right to have the associate handle their cases in conjunction with his association with a new firm?
- Whether the associate and/or the new firm has the right to inform clients on whose files the associate was working of his transfer to the new firm and of their right to terminate the old firm’s representation and retain the new firm and/or the associate to represent them in connection with the subject lawsuits?