The departure of a lawyer from a  firm often creates a highly-charged, emotional atmosphere which can make  it difficult for those involved to appropriately consider their  responsibilities to the clients and to each other. ABA Formal Opinion  489, released in December 2019 by the ABA Standing Committee on Ethics  and Professional Responsibility, contains the latest ABA direction  regarding ethical obligations during this difficult time. These duties  range from notifying the firm and clients of the intended departure,  joint efforts by the firm and the departing lawyer to ensure the orderly  and timely the transition of files as directed by clients, the return  of firm property, and organizing files that remain with the firm.

Note that the ABA opinion relates to the Model  Rules, which provide the basis for all states’ rules of professional  conduct. Some states, like Florida and Virginia, have specific rules  regarding departing lawyers and client communication, so it’s important  to consult your state’s rules.

The Opinion recognizes that part of the lawyer’s  duty to communicate under RPC 1.4 includes the duty to notify clients of  lawyer departures.  To that end, the Opinion recommends – but does not  require -- that the departing lawyer and law firm work toward a joint  communication. However, the departing lawyer and the firm may  communicate unilaterally with the clients, with some minor limitations.

As to firm efforts to prevent or lessen lawyer  mobility, identified in part in RPC 5.6, the Opinion states that firm  organizational agreements “cannot impose a notification period that  would unreasonably delay the diligent representation of the client or  unnecessarily interfere with a lawyer’s departure beyond the time  necessary to address transition issues, particularly where the departing  lawyer has agreed to cooperate post-departure in such matters.” In  addition, firms are prohibited from penalizing a client who chooses to  move with the departing lawyer by withholding firm resources needed to  effectively represent the client prior to the lawyer’s departure.

According to the Opinion, departing lawyers have a  duty to cooperate with the firm in order to organize and update files  for clients remaining with the firm, including such information as  deadline calendaring and educating replacement counsel file, as well as  reasonably cooperating in billing. A departing partner may be required  to return firm property, including intellectual property, proprietary  information, and equipment.

It’s a best practice for firms to carefully  consider and establish written policies educating lawyers about the  procedures the firm will follow during a lawyer departure. Identifiable  and uniform expectations lessen the possibility of breaches of ethics  rules, the standards of care, and fiduciary duties.