This Week in Legal Ethics – New Professional Conduct Ruling

July 13, 2016

By Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.

Date:                                     April 28, 2016
Cite as:                                 2016 SKLSPC 3
Classification:                   Advising Clients When Lawyer Leaves Firm
Practice Area:                    General
Code Section(s):              2.07(1)[4]

Facts:

Lawyer X, who had been an associate lawyer with The Firm for approximately 10 years, indicated to firm partner Lawyer Y that they intended to end their employment with The Firm, effective immediately.  At the time of their departure, Lawyer X indicated they were willing to assist in the production of a joint letter for the facilitation of orderly transfer of client files.

Beginning on the day that Lawyer X departed, The Firm began to produce their own, non-joint letters to the clients, notifying them of Lawyer X’s departure.  The letters did not include the option of directing their file to be delivered to Lawyer X, and did not contain contact information for Lawyer X.

Upon learning about these letters, Lawyer X prepared and sent their own letter to the clients, using client contact information which was in their possession from their time with The Firm.  This letter included a form for the client to sign authorizing transfer of the file to Lawyer X’s new firm.

Eventually, with the assistance of the Law Society and counsel, a true “joint letter” letter was sent to all of the clients, asking them to disregard all previous letters from both the firm and Lawyer X.

Ruling:

When a lawyer leaves a law firm, all affected clients must be given reasonable notice that the lawyer is departing, and must be advised of their options for retaining counsel.  In advance of providing notice to clients of his or her intended departure the lawyer should provide such notice to the firm as is reasonable in the circumstances.  Reasonable steps must be taken to obtain the instructions of each affected client about who they will retain.  The client’s interests must remain paramount to whatever financial, employment or interpersonal issues the parting lawyers are also addressing. Accordingly, clients must be free to decide who to retain as counsel without undue influence or pressure by either the lawyer or the firm. The client should be provided with sufficient information to make an informed decision about whether to continue with the departing lawyer, remain with the firm where that is possible, or retain new counsel.

The lawyer and the law firm should cooperate to ensure that the client receives the necessary information on the available options, and should consider preparing a joint communication to the client. Factors to consider in determining who should provide notice to the client will depend on the circumstances, including the extent of the lawyer’s work for the client, the client’s relationship with other lawyers in the law firm and access to client contact information. In the absence of agreement between the departing lawyer and the law firm as to who will notify the clients, both the departing lawyer and the law firm should provide the notification.

Where a client decides to remain with the departing lawyer, the instructions referred to in the rule should include written authorizations for the transfer of files and client property. In all cases, the situation should be managed in a way that minimizes expense and avoids prejudice to the client.