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  • InsideTrack
  • June 15, 2016

    Ethical Dilemmas: Must I Reveal Departed Lawyer’s New Location When Clients Ask?

    business people walking through revolving door

    June 15, 2016 – It happens quite often: A lawyer leaves a firm to join another firm. If a former client calls asking for the lawyer who has left for another firm, what’s the appropriate response?

    Question

    A lawyer with a significant amount of business recently left our firm to join another firm. We anticipate that former clients will call from time to time looking for the departed lawyer. We would like those former clients to hire us, but don’t want to cross any lines. If a former client calls asking for the lawyer who has left for another firm, what’s the appropriate response from our support staff?

    Answer

    This question is not directly addressed in the Rules of Professional Conduct. The Philadelphia Bar Association, however, in Ethics Opinion 94-30, directly addressed the question and concluded that the firm must provide the contact information for the departed lawyer if requested, but may offer to provide services to the caller after the information is provided.

    The Philadelphia Committee reasoned as follows:

    “That a client enjoys the freedom to choose between the ex-partner and the law firm, or indeed, to seek counsel from a third professional, is a fundamental proposition. The client's unequivocal power to discharge (and, thus, the power to select) a lawyer must be respected by an attorney. See Rule 1.16(a)(3). Likewise, since a lawyer is ethically obliged to abide by a client's decisions concerning the objectives of representation, a lawyer must necessarily honor the client's choice between one firm and another. See also Rule 1.16(d).

    “Moreover, Rule 1.4 obligates an attorney to keep clients up to date about the status of a matter, comply with client requests for information and explain a matter so that a client can make informed decisions. Therefore, the Committee believes that there is an obligation on the part of the law firm to immediately provide to inquiring clients and former clients sufficient information that would allow the client to make prompt contact with the ex-partner, prior to offering the firm's services as a alternative.

    “However, once that information is provided, there is no ethical prohibition against asking the caller if the call concerns a legal matter and if someone at the firm can be of assistance. Rule 7.3(a) permits direct solicitation of a prospective client with whom the lawyer or firm has had a prior professional relationship. The Committee points out, however, that if the caller resists the invitation of the firm to be responsive or otherwise makes it clear that the caller only wants to speak with the ex-partner, continued persistence or heavy-handedness by the firm runs the risk of violating Rule 7.3(b)'s proscription against direct solicitation of persons who have displayed disinclination to deal with the firm or communications involving coercion, duress or harassment. Rule 7.3(13)(2)and (3). Of course any communication by representatives of the firm with the caller must comply with Rule 7.1 which prohibits false or misleading communications about the lawyers in the firm or the firm's services including any inaccurate comparison with the ex-partner's services. See Rule 7.1(c).”

    Have an Ethical Dilemma?

    Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.

    Wisconsin Supreme Court Rules to Consider

    When answering this question, consider SCR 20:8.4(c), prohibiting conduct involving deceit, dishonesty or misrepresentation, and SCR 20:5.3, imposing an obligation on lawyers to employ reasonable measures to ensure that nonlawyers under their supervision behave in a manner that is compatible with the professional obligations of the lawyer. Thus, lawyers are obliged to instruct office staff to give honest answers to former clients who wish to know where a departed lawyer is currently working.


    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:

    Referral Fees and Conflicts of Interest, May 18, 2016

    When do referral fees generate conflicts of interest? In the case of a longtime client’s daughter, referred to another lawyer for a case in a different practice area, when must you comply with informed consent and when might the referral fee generate a conflict of interest?

    Ethical Responsibilities of Stand-by Counsel, April 20, 2016

    You have been appointed to act as stand-by counsel to a criminal defendant who is representing himself at a trial. There are no Rules of Professional Conduct that talk about this type of situation. So just what are your ethical duties?

    For more, search “ethical dilemmas” on WisBar.org.


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