Washington Lawyer - March/April 2025 - 40

SPEAKING OF ETHICS
Lawyers Seeking
Greener Pastures
By Saul Jay Singer
T
he D.C. Bar Legal Ethics
Helpline regularly receives a
broad spectrum of questions
from lawyers who are leaving
one law firm for another, particularly
regarding their right to take
firm clients with them and what
duties and responsibilities they
have to their clients and to their
soon-to-be former firms.
Questions also come in frequently from angry
firm partners who call to complain that an exiting
lawyer " poached our clients. " Then they are
none too pleased when we advise them that
they do not have, and never had, any ownership
or proprietary interest in firm clients. Many
such partners respond with outrage: " What do
you mean? I am the billing partner; I am the
one who brought the client to the firm; I am
the one who manages the client, wines and
dines her, and ensures that she remains pleased
with the services that we provide, and now
you're telling me that a mere associate - who,
by the way, we have incurred great expense to
train and develop - can steal our clients? "
Well, yes ... because clients are not chattel.
One of the basic precepts of the legal ethics
rules is that clients, at all times and for any reason
- good reason, bad reason, no reason at
all, anything short of a court order to the contrary
- have the right to the counsel of their
choice. Practically, that means the clients decide
which lawyer will represent them (provided,
of course, that the lawyer agrees to the representation).
However,
while the exiting lawyer is still employed
by their old firm, that lawyer likely owes
40 WASHINGTON LAWYER
* MARCH/APRIL 2025
continuing fiduciary duties to their employer,
including the duty to take no action contrary to
the firm's interests and to not interfere with the
firm's reasonable business expectations.¹
DUTIES TO CLIENTS
Pursuant to Rule 1.4 (Communication), a lawyer
has the affirmative duty to " keep a client reasonably
informed about the status of a matter
and promptly comply with reasonable requests
for information " and to " explain a matter to the
extent reasonably necessary to permit the client
to make informed decisions regarding the
representation. "
Thus, in Legal Ethics Opinion 273 (Ethical Considerations
of Lawyers Moving From One Private
Law Firm to Another), the Legal Ethics
Committee determined that:
Lawyers who depart one law firm for another,
and those law firms, must be attentive to
ethical concerns arising from such changes
in affiliation. Most importantly, client files
must be made available to the lawyer or law
firm continuing the client representation, clients
must receive suitable notification of their
lawyer's change in professional affiliation, and
conflict of interest inquiries must be made
by the new law firm based on the new lawyer's
current and prior representations.
(Emphasis added.) In most situations, hypothetical
Departing Lawyer's change of affiliation
during a representation will be material to a client,
as it could affect client concerns such as
billing arrangements, the adequacy of resources
to support the lawyer's work for the client,
and conflicts of interest.²
Departing Lawyer can effectively walk the line
between maintaining his fiduciary duties to the
firm while also meeting his ethical duties to the
client by advising the client - in a strictly neutral
manner - about the client's options going
forward, including:
1. Moving with Departing Lawyer to New Firm,
where the lawyer will continue to represent
the client.³
2. Discussing with Old Firm the possibility of it
continuing the representation through other
firm lawyers subsequent to Departing Lawyer's
departure; and
3. Going in an entirely new direction, including
finding a new lawyer to represent them or
proceeding pro se.⁴
In providing such guidance, Departing Lawyer
must be careful not to denigrate or disparage
Old Firm. Thus, for example, if clients ask Departing
Lawyer why he is leaving Old Firm, he
may answer generally about opportunities for
growth and promotion at New Firm, but he
must exercise care not to breach his fiduciary
duty by commenting negatively on Old Firm.⁵
Note that there is no ethical requirement
that Departing Lawyer advise Old Firm of his
planned departure before he so advises his clients.
However, as the Legal Ethics Committee
notes in LEO 273, Departing Lawyer may be
obliged pursuant to an agreement or partnership
or other law to inform Old Firm of his
planned departure at or around the time he so
notifies clients.
As LEO 273 makes clear, any communications
beyond those that are expressly mandated by
the ethics rules - including, for example, actively
soliciting the client to leave Old Firm to
join Departing Lawyer at New Firm - could violate
the lawyer's obligations under partnership
law (for departing partners), corporate law
(for shareholders of a professional corporation),
or common law of obligations of employees
(for lawyers who are employees of a firm).
Which clients must be notified? If Departing
Lawyer had no direct contact with the client,
or if he performed only minimal services
for the client - say, checking cites on a brief at
1 a.m. in the firm library - such that the client
Washington Lawyer - March/April 2025

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