Washington Lawyer - March/April 2025 - 41

SPEAKING OF ETHICS
will not need to know, or care, that the lawyer
is leaving the firm, then there is no duty for the
lawyer to advise the client about the departure.
On the other hand, one need not be a " billing
lawyer " to have the duty to advise clients about
their departure. The general rule of thumb is
that if the client recognizes and/or identifies
the lawyer as their counsel, then the lawyer
would have Rule 1.4 duties to keep the client
informed.
Who must advise the clients about the
lawyer's departure? Departing Lawyer has
the duty to inform his clients about his change
of affiliation but, if he is unable to represent the
client, or declines to continue such representation,
he may rely on Old Firm's representation
that it will provide the requisite notice, if such
reliance is reasonable.⁶
In some instances, Departing Lawyer may be
contractually bound to cooperate with Old
Firm in issuing a joint letter advising Departing
Lawyer's clients about their options going forward,
or Old Firm and Departing Lawyer may
agree to collaborate on the issuance of such a
joint letter.
Although, absent a contractual or other legal
obligation, Departing Lawyer has no ethical
duty to issue a joint letter, the Legal Ethics
Committee cites with approval the conclusion
in ABA Formal Opinion 99-14 (1999) that " far
the better course to protect clients' interests
is for the departing lawyer and her law firm to
give joint notice of the lawyer's impending departure
to all clients for whom the lawyer has
performed significant professional services
while at the firm, or at least notice to the current
clients. " ⁷
When must notice to clients be given? Departing
Lawyer is not required to wait until his
employment at Old Firm terminates to provide
this required guidance to his clients,⁸ and there
is no rule precisely delineating how much advance
notice of departure a lawyer is required
to provide. The D.C. Rules are " rules of reason "
and, accordingly, Departing Lawyer is required
to provide notice within a reasonable time,
which may vary by the circumstances.⁹
OLD FIRM DUTIES
The District of Columbia is an " entire file " jurisdiction,
pursuant to which the entire file -
every relevant piece of paper, every note, every
electronic communication - belongs to the
client.10
Thus, when a client chooses to continue representation
with Departing Lawyer at New Firm,
Old Firm has the affirmative duty to turn over
the entire file to the client or, at the client's direction,
to deliver it to Departing Lawyer.
Again, pursuant to Rule 1.16(d), under these circumstances
Old Firm would be required to
" surrender[ ] ... papers and property to which
the client is entitled .... " The failure to comply
expeditiously may dramatically harm both the
client and Departing Lawyer, who, without the
file, could be deprived of the ability to provide
the client with competent representation.11
Old Firm may not interfere with Departing
Lawyer's right to seek employment
elsewhere or to take clients with him.
May Departing Lawyer recruit other Old
Firm lawyers and staff to join him at New
Firm? The Legal Ethics Committee sees this
question as being resolved primarily, if not entirely,
" under law other than ethics law, such as
the common law of interference with business
relations and fiduciary obligations. " 12
Old Firm may not interfere with Departing
Lawyer's right to seek employment elsewhere
or to take clients with him. Rule 5.6 (Restrictions
on Right to Practice) provides that " [a]
lawyer shall not participate in offering or making:
(a) A partnership, shareholders, operating,
employment, or other similar type of agreement
that restricts the rights of a lawyer to
practice after termination of the relationship,
except an agreement concerning benefits
upon retirement. "
Because such a provision in a partnership, employment,
or other agreement would limit
both the lawyer's professional autonomy and
the clients' unfettered right to the counsel of
their choice, Old Firm may not interfere with
Departing Lawyer's right to seek employment
elsewhere - even if such new position involves
direct competition with Old Firm - or
to take clients with him. This prohibition extends
not only to absolute bars upon competition
with Old Firm, but also to " [r]estrictions ...
that impose a substantial financial penalty on a
lawyer who competes after leaving the firm
.... " 13
Moreover, Old Firm may not limit Departing
Lawyer's right to communicate with clients.14
May
Old Firm take legal action against
departing clients to collect outstanding
fees? In general, Rule 1.6(e)(5), an exception to
the broad Rule 1.6 duty for attorneys to maintain
and protect confidences and secrets, permits
lawyers to make otherwise prohibited disclosures
" to the minimum extent necessary in
an action instituted by the lawyer to establish
or collect the lawyer's fee. " 15
Where the lawyer or law firm whose relationship
with the client is being terminated in this
process is owed money for legal services provided,
a retaining lien against client files is available
only to a very limited extent in the District
of Columbia.16
D.C. Bar legal ethics counsel are available for confidential
inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.
NOTES
1 This is ultimately a question of fact and substantive
law, upon which the Legal Ethics
Program staff is not authorized to comment.
2 See LEO 221 (Law Firm Employment Agreement).
3 To be clear, Departing Lawyer is not ethically
required to continue to represent any clients at
New Firm; in fact, he may be prohibited from
doing so either because of a conflict or New
Firm policy. However, if Departing Lawyer will no
longer be representing the client going forward,
the lawyer will be required to effect a withdrawal
from the representation. Depending on the
circumstances, including the procedural rules
of the tribunal and the willing participation of
Old Firm, such withdrawal may require a formal
motion to withdraw or be effected through a
simple line/praecipe notice.
4 Note that, as a matter of general substantive
law, entities may enter a court appearance only
through counsel and may not proceed pro se.
5 This general proscription does not apply if Old
Firm has committed or is committing ethical
violations or other acts that harm the client;
in such cases, the lawyer - whether or not
departing - would have the affirmative duty to
warn the client about the firm's wrongful acts.
6 Not surprisingly, Old Firm - which, in most
cases, will want to keep the clients of Departing
Lawyer - would be more than happy to assume
responsibility for communication with the client
regarding future representation.
7 See LEO 372 (Ethical Considerations in Law Firm
Dissolutions).
8 As the Legal Ethics Committee acknowledges
in LEO 273 (Ethical Considerations of Lawyers
continued on page 46
MARCH/APRIL 2025 * WASHINGTON LAWYER 41
Washington Lawyer - March/April 2025

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