Every week, our staff gets a steady stream of emails about attorneys starting their own firms, or joining existing ones to create new practices. These are happy occasions that we enjoy sharing, but usually there’s a flip side — the attorneys have typically left their old firms, or sometimes existing law firms split up entirely. We never get emails about the breakups, though some of those would be more instructive.
When attorneys split up, many times a tug-of-war ensues over who gets to keep certain clients, which is to say, who gets to keep the client’s fees. In these battles, unfortunately it occasionally winds up that the client, whose interests should be kept paramount, ends up as a loser as well.
I still remember the first time, as a still relatively tenderfoot attorney, I parted ways with a firm. Some of my clients were people who I had brought personally, and with great effort, into the firm’s book. I was very much under the impression that I should be entitled to keep “my” clients — which was wrong. The managing attorney brusquely cut me off, saying that “those are the office’s clients” — which was equally wrong.
The truth is that clients don’t “belong” to anyone. Like so many attorneys, we were haggling over a decision that in reality shouldn’t be in the control of anyone but the client. (I’m happy to say that we eventually worked everything out in precisely that spirit.)
But, based on what I gather from talking to folks in multiple states who advise attorneys on ethical issues, many attorneys still have questions about how to handle a split with the highest level of professionalism. That’s really rather surprising since law firms change rosters with such common frequency, hence the steady stream of emails mentioned above.
The guiding principle should be easy: Always, always put the client first. More practically, when an attorney leaves a firm, the firm has an obligation to notify every existing client with whom that attorney has a personal relationship. The notice should explain the choices the client has, whether it’s to stay with the firm, follow the departing attorney, or — and this one is important to remember — to take their matter somewhere else entirely. But above all, the clients need to understand the fact that the choice is entirely theirs — and that they need to make clear what their choice is, so the attorneys know what to do with the file.
I’ll never forget the best piece of advice I ever received on the subject, from an attorney I greatly respect. If the attorneys work together and agree on the text of a joint letter to send to clients, then things are probably going to turn out OK. If attorneys can’t agree on a joint letter, that’s where you’re likely to run into problems. Even though firms aren’t absolutely required to give clients notice in writing, a jointly written letter is likely the best option by far.
So please, keep those emails coming as you share the good news about new beginnings. But for every arrival there is also a departure, and departures often mean that attorneys have to work extra hard to make sure that a client’s right to choice of counsel is adequately protected.
South Carolina Lawyers Weekly’s regular Ethics & Professionalism column covers bar discipline, malpractice suits and other related topics. Follow columnist David Donovan on Twitter @SCLWDonovan