Law firm managers have long known they can’t require attorneys to sign noncompete agreements when they join a firm. Even so, there have still been instances where firms have made it challenging for a lawyer trying to make a lateral move.
But a recent opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility makes it clear that any provision of an employment agreement that interferes with a client’s autonomy is never acceptable.
“Firms may require some period of advance notice of an intended departure,” Formal Opinion 489, handed down last month, reads. “… Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.”
Though legal professionals say this area of the ethics rules doesn’t tend to trip up too many lawyers — Indiana has only seen one such case in the last five years — the ethics opinion is still important, they say, because it drives home a crucial point: When lawyers move to another firm, the interest of their clients should always be key.
“The theme is actually assuring that there’s a smooth transition with client matters when a lawyer is leaving a firm or a firm is breaking up,” G. Michael Witte, executive director of the Indiana Supreme Court Disciplinary Commission, said.
Formal Opinion 489 is based around Model Rule of Professional Conduct 5.6(a), which holds that, “A lawyer shall not participate in offering or making: (a) partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.” Indiana’s Rule 5.6(a) tracks this language.
One of the main points of the ethics opinion is the notice requirement a firm can impose on a lawyer who wishes to move to another firm. “The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession,” the ethics committee wrote.
The opinion also advises firm leadership that they cannot withhold resources, such as email or staff, from a departing attorney during the transition period if doing so would prevent leaving lawyers from adequately representing their clients. Lawyers and their firms are encouraged to coordinate during a transition period in the best interests of any affected clients.
To that end, firms should have procedures in place that explain the process of transitioning a lawyer out of the practice and to another firm, the opinion advises. Most sophisticated firms have established such procedures, said Bruce Lithgow, a managing director of the Partner Practice Group of Major Lindsey & Africa.