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MONTH-IN-BRIEF (Jan 2020)

Ethics

New ABA Ethics Opinion on Obligations When Lawyers Make Lateral Moves

By Keith R. Fisher

“Clients are not property.”  This and other uncontroversial observations – such as that lawyers have a right to leave law firms and clients have the right to choose their lawyers – form the predicate for the recently issued ABA Formal Opinion 489, discussing ethical obligations when lawyers leave firms.   This opinion updates older ABA guidance, including Formal Opinion 99-414, “Ethical Obligations When a Lawyer Changes Firms,” and Formal Opinion 09-455, “Disclosure of Conflicts Information When Lawyers Move Between Law Firms.”

The key precepts of guidance from those earlier opinions remain unchanged.  The overarching consideration is protection of client interests during a lawyer’s transition.  Both the law firm and the departing lawyer must ensure that departure from the firm does not have a material adverse effect on the interests of the clients with active matters upon which the lawyer is currently working.  The goal is to ensure orderly transition of client matters when a lawyer notify the firm of intent to move to a new firm.  The departing lawyer must disclose his or her client information to the new firm where necessary and appropriate to perform a conflict of interest analysis well before the departing lawyer officially joins the new firm.  

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