Moving On: Checklist and Tips for Departing Attorneys

Attorney departures are not a new trend, but the trend of lateral moves has continued to increase significantly. According to a recent NALP report, lateral moves by partners and associates in 2021 increased nearly 43% and 149%, respectively, from the previous year. In this Article, we provide a checklist and tips for departing attorneys to assist in the transition.

Before diving in, lawyers should keep in mind that an in-depth discussion of key ethical duties implicated upon attorney departure is beyond the scope of this Article. Lawyers considering making a move should take the time to educate themselves of their ethical duties under the Texas Rules, as well as the law of fiduciaries, property and unfair competition, and seek outside assistance if needed. Helpful guides on ethical duties can be found in this Opinion from the Philadelphia Bar Association and here.

Checklist for Departing Attorneys

Please note that this checklist is by no means exhaustive and is merely to serve as a guide to modify/augment as needed.

If you are a partner, review your firm’s partnership agreement.
Compile a list of current and former clients including their contact information (e-mail address, mailing address, telephone number) for future conflicts checks. Note the clients that you wish to give the option of coming with you. These clients should be limited to thoseclients you personally represented. As discussed in Texas Ethics Opinion 693 (Feb. 2022), the term “personally represented” sets a relatively low threshold of legal representation. The term does not require that a lawyer serve as a counsel of record for a client, bill for legal services to that client, or play a major role in the client representation. Even a modest provision of legal services in connection with a client’s matter qualifies as “personal representation.”
Prepare your resignation letter or notice and provide notice as soon as possible.
Prepare for your resignation meeting. Points to discuss in the resignation meeting should include, but not be limited to status of cases you do not wish to provide the option to go with you, best method to notify clients of departure, and how the firm will forward mail, transfer files, and transfer client trust funds.
Draft a status memo for all open files, and be sure to include information about upcoming deadlines.
Begin gathering and removing personal belongings.
Prepare a list of firm property or shared property you wish to take. Note that under Texas Ethics Opinion 670, you may, at your own expense, make and retain copies of former clients’ documents generated in matters in which you personally represented the clients, provided client confidentiality is preserved.
Draft a joint client notification letter/e-mail (details on what to include in the next section). Additionally, consider preparing a separate client notification letter in the event a joint notification cannot be agreed upon.
Prepare an authorization to transfer file to include with client notification letter.
If you intend to withdraw from representing a particular client, give the client proper notice and comply with Texas Rule 1.15.
File motion for withdrawal for any pending litigation under Texas Rules of Civil Procedure Rule 10.
If your compensation is based on a percentage of fees collected, negotiate the basis for your compensation for work-in-progress that has not been billed and accounts receivable not yet collected by the time you leave.
Notify the Texas Bar of your change of address or change your address on the state bar’s website.
Change your email address on listservs, magazines, publishers, and other legal organizations to which you belong.
Arrange for your name to be removed from the firm’s bank accounts, if applicable.
Nullify employment contracts, if applicable.
Assist with COBRA forms, transfer of benefits, if applicable.
Update personal address for W-2 forms.

Client Notification Letters

It’s preferred to provide notice of an attorney’s departure by a joint letter from the firm and the departing attorney. Should this not be possible, a separate notice is permissible under ABA Formal Ethics Opinion 99-414. Keep in mind that time is of the essence to ensure clients have adequate time to consider their options and attorneys have sufficient time to time transfer cases, if necessary.

The notification letter should:

Include information about the departing lawyer’s plans–the effective date of the attorney’s departure and where the attorney is going.
Notify the client that she may stay with the firm and/or go with the departing attorney should those options be available.
Include an authorization to transfer file and trust funds and include a return envelope for the authorization if the client elects to go with the departing lawyer.
Provide a clear explanation and alternative option for representation if the client is not able to continue representation with the firm or move with the departing attorney.
Clarify any critical information regarding the client’s matter.
Inform the client what happens to the client funds deposited in the firm’s trust account or balances that are due.
Notify the client where their file is located and how the file may be retrieved or transferred.
Update the client about the lawyer who is currently handling their matter in the interim.

A Few Tips on What Departing Attorneys Should Not Do:

Remove the firm’s only copy of client files or delete client files, documents, and data from the firm’s electronic databases and devices without the firm’s consent. Texas Opinion 684.
If separate notification letters will be sent, the departing attorney letter from the departing attorney should not: prompt the client to terminate its relationship with the firm (though the attorney may express interest and ability to continue representation) or disparage the firm. The letter SHOULD be explicit in letting the client know that she has the ultimate choice in deciding who will continue the representation.
Solicit clients the lawyer did not personally represent unless an exception to Rule 7.03 applies.
Solicit clients before announcing the departure to the firm. See Brewer & Prichard, P.C. v. Johnson, 7 S.W.3d 862 (Tex. App.—Houston [1st Dist.] 1999), rev’d, 73 S.W.3d 193 (Tex. 2002) (associates, as agents of a firm, owe a fiduciary duty to the firm not to self-deal).

Conclusion

Under the best circumstances, moving firms can be stressful. It’s best to prepare early and have a plan in place to make the transition as smooth as possible. If you’re a TLIE insured considering a move and have questions, you can contact us.

By Lauren Bianchini