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04 December 2019

ABA warns US law firms not to 'punish' lawyers who defect to rival practices

New guidance underlines importance of keeping client interests uppermost when dealing with exits


US law firms have been warned not to ‘punish’ lawyers who jump ship to join rivals in new guidance issued by The American Bar Association today (4 December). The guidance draws on the ABA’s rules as well as legal precedent to underline the need for law firms to put clients first when seeking to impose notice periods on departing lawyers.

‘Firms have an ethical obligation to assure that client matters transition smoothly and therefore,... agreements may request a reasonable notification period, necessary to assure that files are organised or updated, and staffing is adjusted to meet client needs,’ the guidance states.

'In practice, these notification periods cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.'

Orderly and flexible

The guidance – Formal Opinion 489 – was issued by The ABA’s Standing Committee on Ethics and Professional Responsibility. It suggests a departing lawyer and the affected firm develop an orderly and flexible plan that ‘protects client interests during the lawyer’s transition’.

Measures include ensuring lawyers have access to “adequate firm resources needed to competently represent the client during any interim period”. The guidance adds: “For instance, the lawyer cannot be required to work from home or remotely, be deprived of appropriate and necessary assistance from support staff or other lawyers necessary to represent the clients competently, including access to research and drafting tools that the firm generally makes available to lawyers. 

Guiding judges

According to the ABA, opinions issued by the standing committee set out ‘to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behaviour’.

Unlike in other jurisdictions, long notice periods are unusual in the US. In the UK, for example, partners are regularly held to six-month or even 12-month notice periods and then placed on ‘gardening leave’.

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