Like other members of the legal community, you may one day contemplate a lateral move to a new law firm. Lateral moves are common for attorneys, occurring for several reasons. Some aim to avoid stagnation, while others want to spur professional development or gain new perspective. Yet whatever your reasons, it’s important to plan carefully to minimize the risks to yourself, your clients, your current firm and any future employer.
If you are considering a lateral move, research the process within your own jurisdiction, review all contracts related to your employment with your current firm and have a clear understanding of your client obligations. Due to the sensitive nature of the work, leaving a law firm isn’t as simple as giving notice, so ensure you can thoroughly answer these questions:
Are there legal constraints to consider?
It is important for attorneys to review any and all contracts related to your employment with your current firm before committing to a lateral move. Consider what, if any, legal constraints exist in relation to a partnership agreement, non-compete provisions of an employment contract or other contracts between you and your current law firm, such as retirement fund penalties due to an early departure. Would a lateral move trigger any such provisions?
Have you reviewed the key ethical guidelines?
Are you following the suggested guidelines of ABA Formal Ethics Opinions 99-414 and 09-455?
Formal Opinion No. 99-414 is one of the first resources you may wish to review, as it provides guidelines for notice to clients either jointly by the attorney and firm, or by the transitioning attorney prior to giving notice to the law firm, if deemed necessary. Another key guideline is Formal Opinion No. 09-455, which notes it is important to “not compromise the attorney-client privilege or otherwise prejudice a client or former client” in the process of detecting and resolving conflicts of interest.
Have you reviewed the applicable Model Rules?
As a transitioning attorney, it’s important to thoroughly review the Model Rules of Professional Conduct as adopted by your state. Relevant rules for a transitioning attorney may include:
- Model Rule 1.1 Competence
- Model Rule 1.3 Diligence
- Model Rule 1.4 Communication
- Model Rule 1.6 Confidentiality of Information
- Model Rule 1.7 Conflicts of Interest: Current Clients
- Model Rule 1.9 Duties to Former Clients
- Model Rule 1.16 Declining or Terminating Representation
- Model Rule 5.6 Restrictions on Right to Practice
- Model Rule 7.1 Communications Concerning a Lawyer’s Services
- Model Rule 7.3 Solicitation of Clients
Note also whether amended ABA Model Rule 1.6 been adopted within your jurisdiction. This rule is instructive regarding the type of information that may be disclosed to address potential conflicts of interest. However, you should refer to the specific adopted rules and comments within your own jurisdiction for guidance.
Will a third party conduct conflict of interest checks?
The transitioning attorney and the hiring law firm must work together to perform an appropriate conflicts of interest check while not breaching the attorney-client privilege or ABA Model Rules 1.6, 1.7, 1.8, 1.9 or 1.10. To help minimize the risk, the attorney and hiring firm should consider whether they will engage a third party to conduct the conflicts of interest check.
Should you retain counsel related to lateral moves?
Owing to the complexity of a lateral move, an attorney may wish to retain their own independent counsel to advise and guide them through the process. Lateral moves often have a ripple effect that can create challenges for both a former law firm and a new employer. The interests of current and former clients of both firms may also be at risk. An intermediary lawyer may help you avoid ethics violations and potential legal actions. ABA Formal Ethics Opinions 09-455 discusses the retention of the services of an intermediary lawyer.
Are you protected by professional liability insurance?
Are there professional liability policies in place to address any and all potential matters resulting from the lateral move? Professional liability coverage should be a priority for the lateral attorney, as well as the hiring law firm and the soon-to-be-former law firm. Make sure you have a clear understanding of the coverage in effect and how they will or will not apply to your lateral move. With the right professional liability insurance, you can help ensure you are better protected in lateral moves.
Conclusion
There is exposure to risk for all parties involved in lateral moves of an attorney, including the hiring law firm and the soon-to-be-former law firm. As an attorney, it is imperative to protect the interests of your current and former clients and firm attorneys, as well as the interests of both firms and their clients. With careful planning, you can help minimize the risk to your existing and transitioning clients, as well as the other parties involved.