This post deals with a recent lawsuit filed against GAL by his former firm over ethical conduct by that firm. One of the interesting things that I learned when I quit my law firm is that there are a large number of ethical rules which help lawyers understand the right way and wrong way to do it. I will be posting more regularly about the various ethics opinions in this area. Suffice it to say that there are some pretty important ethics principles which apply. The first is that the client always has the choice as to who will represent them. Just because the client signed a retainer with the former firm, does not mean the client has to stay with that firm. In fact, both the departing lawyer and the former firm have an obligation to quickly inform the client of the impending departure and advise the client of their absolute right to choose their counsel. Neither lawyer can do anything to interfere with the client’s right to decide who will represent them.
There are some ethics decisions which may suggest that a departing lawyer cannot contact the firm’s clients and unilaterally inform of their departure. Because of the dangers of improper solicitation, the ethics opinions strongly recommend that a joint letter be sent out from both the departing lawyer and the former firm with a return receipt envelope and checkbox for the client to indicate which law firm they have selected.
When I left my old firm, I immediately looked up the ethical rules. I decided early on that I was going to do it the "right way." I told my partners that I was leaving before taking any actions to start my new firm. I didn’t want them to hear on the street that I was looking for office space or otherwise setting a foundation for departure. Of course, I never even considered soliciting or contacting clients.
On the other hand, my old firm immediately went into emergency mode when they learned I was leaving. Big boss immediately started gathering information about clients and cases, deciding which cases they didn’t want to provide any further representation on (despite their obligation to do so) and which cases they wanted to stay. Instead of sending the clients a letter indicating that I would be departing, they spent all their time and energy counting money and strategizing.
The first agreement I received from my law firm surprised me. I didn’t know that there would be a "contract" concerning my departure. When I read the agreement, I immediately saw that it attempted to divide up clients as though they were playing cards. The firm had actually put together a list and asked me to sign a contract agreeing to how the clients would be divided. In one instance on the case that I am currently getting sued on, they actually sought my agreement that I would not represent the client even if requested to do so by the client.
Of course, I rejected the approach suggested and reminded them of the ethical obligations for all concerned. Unfortunately, I never sensed from the firm that there was any consideration besides their profits. The ethical obligations were simply a nuisance getting in the way of their ultimate goals. While we eventually did send a notice letter to clients, it went out just prior to my departure and, in the case I’m getting sued on, never went out at all.
If you are thinking of leaving your firm, I encourage you to do your best to meet your ethical obligations. Get informed on where the fences are. If your firm is like my old firm, you will have quite a chore staying in bounds. There were many days where I felt like my obligation to let the clients know what was happening was being intentionally thwarted by my old firm. They didn’t hesitate to tell me that they believed it would be an ethical violation for me to contact any of these clients directly. They used the ethics rules as an offensive weapon which would allow them to complete their analysis and decide where each client would go for themselves.
The lawsuit in which I am currently involved will test some of the ethical rules noted above. Will the court care that the client was treated as property and used as leverage in order to line a firm’s pockets with profits? Or will the court see this as an everyday event and treat it as a big "so what." From my point of view, the contested fee belongs to the client. It is the principle that I am after. Does the system even care anymore? Stay tuned…