Formal Advisory Opinion No. 97-3
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 97-3
State Bar of Georgia
Issued by the Supreme Court of Georgia
On September 4, 1998
Formal Advisory Opinion No. 97-3
For references to Standard of Conduct 4, please see Rule 8.4(a)(4).
For references to Standards of Conduct 5, please see Rules 7.1(a).
For references to Standard of Conduct 6, please see Rule 7.3(b).
For references to Standard of Conduct 22, please see Rule 1.16(d).
For references to Standards of Conduct 44, please see Rule 1.3.
For references to Standard of Conduct 45(b), please see Rule 7.1(a)(1).
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Whether it is ethically permissible for a departing attorney to send a communication to clients of the former law firm?
No Standard prohibits a departing attorney from contacting those clients with whom the attorney personally worked while at the law firm. A client is not the property of a certain attorney. The main consideration underlying our Canons of Ethics is the best interest and protection of the client.
An attorney has a duty to keep a client informed. This duty flows in part from Standard 22 which provides that a lawyer shall not withdraw from employment until that lawyer has taken reasonable steps to avoid foreseeable prejudice to the client including giving due notice to the client of the lawyer's withdrawal, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. Furthermore, Standard 44 prohibits an attorney's willful abandonment or disregard of a legal matter to the client's detriment. Therefore, to the extent that a lawyer's departure from the firm affects the client's legal matters, this client should be informed of the attorney's departure. The fact or circumstances of an attorney's departure from a law firm should not be misrepresented to the firm's clients. See Standard 4 (which prohibits an attorney from engaging in professional conduct involving dishonesty, fraud, deceit, or willful misrepresentation); and Standard 45(b) (which prohibits an attorney from knowingly making a false statement of law or fact in his representation of a client).
If the departing attorney either had significant contact with or actively represented a client on the client's legal matters, the attorney may communicate with the client, in either written or oral form, to advise the client of the attorney's departure from the firm. An appropriate communication may advise the client of the fact of the attorney's departure, the attorney's new location, the attorney's willingness to provide legal services to the client, and the client's right to select who handles the client's future legal representation.
Assuming the departing attorney either had significant contact with or actively represented the client, the written communication to the client does not need to comply with the provisions governing advertisements contained in Standard 6, because it would not constitute "a written communication to a prospective client for the purposes of obtaining professional employment" as contemplated by Standard 6 (i.e. the written communication is not required to be labeled an "advertisement"). Of course, any written communication regarding a lawyer's services must also comply with Standard 5, which prohibits any false, fraudulent, deceptive or misleading communications; and with any other applicable standards of conduct.
A similar analysis should also apply to an oral communication by the departing attorney to a client with whom the attorney had significant contact or active representation on legal matters while at the firm. If the departing attorney contacts such a client orally, that attorney should only provide information that is deemed appropriate in a written communication as set forth above.
With respect to the timing of the disclosure of the attorney's departure to the client, the ultimate consideration is the client's best interest. To the extent practical, a joint notification by the law firm and the departing attorney to the affected clients of the change is the preferred course of action for safeguarding the client's best interests. However, the appropriate timing of a notification to the client is determined on a case by case basis. Depending on the nature of the departing attorney's work for the client, the client may need advance notification of the departure to make a determination as to future representation.
The departing attorney may also owe certain duties to the firm which may require that the departing attorney should advise the firm of the attorney's intention to leave the firm and the attorney's intention to notify clients of his or her impending departure, prior to informing the clients of the situation. Specifically, the departing attorney should not engage in professional conduct which involves "dishonesty, fraud, deceit, or willful misrepresentation" with respect to the attorney's dealings with the firm as set forth in Standard 4.
In conclusion, as long as the departing attorney complies with the Standards governing advertisements, solicitation, and general professional conduct, the attorney may ethically contact those clients with whom the attorney had significant contact or active representation at the former law firm, so as to advise the clients of the attorney's departure as well as the client's right to select his or her legal counsel. Legal issues which may arise from a particular set of facts involving a departing attorney including, but not limited to, contract or tortious interference with contract, are beyond the scope of this formal advisory opinion.
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