by Scott B. Garner
My husband changed jobs so fast that I simply never knew what business he was in.
~ Rose Kennedy
Attorneys, including associates, leave law firms all the time for a variety of reasons. Sometimes it is in search of greener grass at a different law firm. Sometimes it is to go in-house. Sometimes it is to pursue a non-legal job (or perhaps an illegal job—but that is another article altogether). Sometimes it is to stay home and raise a family. Sometimes it is because the law firm dissolves. And sometimes it is because the law firm asked the lawyer to leave. Whatever the reason, lawyers must be mindful of their ethical duties to their existing clients when they plan and execute their departures.
Unless a lawyer is taking a particular client or matter with her when she leaves a law firm, her departure is treated as a termination of the attorney-client relationship, subject to California Rule of Professional Conduct 3-700. Rule 3-700 provides the grounds for mandatory and permissive withdrawal from a client relationship. Irrespective of the grounds for the withdrawal, the attorney must take “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” Cal. Rules of Prof’l Conduct 3-700(A)(2). But what are those reasonable steps that a lawyer must take?
In the extreme case, an associate (or an Of Counsel or partner, for that matter) will depart the firm without giving a second thought to a particular client’s matter. When a lawyer departs a big firm, in particular, she may assume that one of the other lawyers can and will pick up the slack—and that often will be a reasonable assumption. But not always.
One of the most sobering cases addressing this scenario is the U.S. Supreme Court case of Maples v. Thomas, 565 U.S. 266 (2012). In Maples, two associates from the New York office of Sullivan & Cromwell took on the pro bono appeal of a death penalty sentence for convicted murderer Cory Maples. They apparently were the only lawyers at the firm working on and knowledgeable about the matter. Both left the law firm without informing their client or the court and, apparently, without ensuring that any other Sullivan & Cromwell lawyer was taking over the case. And, the new positions they were taking (a federal clerkship and an in-house position with the European Commission in Belgium) precluded them from taking Mr. Maples’s case with them.
After the two associates left the firm, the trial court denied a petition for post-conviction relief they had filed while still with the firm. The denial commenced a 42-day appeal period. The court clerk sent a notice of the denial to the two associates, but the firm’s mailroom—not knowing anyone else to whom to give the notice—returned it to the clerk’s office unopened, with the notation, “Returned to Sender—Attempted, Unknown.” Id. at 276. Eventually, Mr. Maples learned of the snafu and telephoned his mother, who then called Sullivan & Cromwell to find out what was going on. The firm quickly put together a team of lawyers to try to file a now tardy appeal. The appeal was denied, however, as untimely. Ultimately, that appeal made its way to the U.S. Supreme Court on review of Mr. Maples’s habeas corpus petition. Fortunately for Mr. Maples, he found a sympathetic ear in Justice Ginsberg, who, writing for the majority, held there was cause to excuse the default in light of the fact that “the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel.” Id. at 271.
Although Mr. Maples survived what literally could have been a deadly mistake,1 the Sullivan & Cromwell associates did not exactly escape unscathed. Having Justice Ginsberg and the rest of the U.S. Supreme Court discuss your ethical lapses is not what any attorney aspires to have happen. While this may be an extreme case—what Justice Alito referred to in his concurring opinion as a “veritable perfect storm of misfortune”—it is a good reminder of the need to exit a law firm properly. Id. at 291 (Alito, S., concurring).
Conventional wisdom provides that an associate departing from a law firm should prepare an “exit memo” providing the partner in charge of the case with the status of the case. In some situations, that indeed may be sufficient. In the Maples case, that may have worked, provided the associates could have found an involved partner to give the memo to. But suppose the associate is the only litigator at a firm of six lawyers, and she is leaving the law firm to take an in-house job. Would it be sufficient to merely plop an exit memo on the desk of the client relationship partner, who happens to be a tax lawyer? What if trial is scheduled to start in six weeks? What if an opposition to a motion for summary judgment is due in a week? The “reasonably foreseeable prejudice” in those situations is obvious—the tax lawyer will be woefully unprepared to go to trial or oppose the motion for summary judgment. Given that reasonably foreseeable prejudice, preparing an exit memo on the way out the door is unlikely to be a sufficient or reasonable step to avoid that prejudice.
When a lawyer, including the most junior associate, works at a law firm, every client of that law firm becomes a client of that lawyer—whether or not the individual lawyer worked on that client’s matters. See, e.g., PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384, 392 (2007) (“Unless there is an agreement to the contrary, the retention of an attorney in a law firm constitutes the retention of the entire firm.”); Streit v. Covington & Crowe, 82 Cal. App. 4th 441, 445 (2000) (“[B]y retaining a single attorney, a client establishes an attorney-client relationship with any attorney who is a partner of or is employed by the retained attorney.”); see also Cal. State Bar, Formal Op. 2014-190. When the lawyer departs the law firm, then, she at least must give consideration to Rule 3-700(A)(2) because, in effect, she is terminating her representation of each of the firm’s clients. As a practical matter, as long as the law firm is not dissolving (see Cal. State Bar, Formal Op. 2014-190), the client will not suffer any reasonably foreseeable prejudice when a lawyer not working on his case departs from the law firm. Thus, the departing lawyer will not have to take any steps to avoid prejudice to that client. When the lawyer is working on a particular client matter, however, that departing lawyer ignores Rule 3-700(A)(2) at her peril.
The exit memo is a good place to start when a lawyer leaves a firm without any intention of taking a client with her. If the lawyer reasonably believes that other members of the law firm are qualified and prepared to continue the representation, then that likely is all that is required. To the extent the lawyer was heavily involved in a matter—and, in particular, where the lawyer had contact with the client—the lawyer also may be required under Rule 3-500 (duty to communicate) to tell the client of her impending departure, as in those circumstances the departure may be a “significant development” in the representation. See Cal. State Bar, Formal Op. 1985-86 (discussing lawyer’s obligation to provide client timely and accurate notice of changes in employment status). The law firm also would have that same obligation to tell of the associate’s departure.
Even where a lawyer is leaving a client in good hands at her soon-to-be-former law firm, there still may be limits on the timing of the lawyer’s departure. Suppose, for example, an associate is working on an opposition to a motion to dismiss that must be filed in three days. Even though the law firm may have many other lawyers capable of writing such an opposition, the timing of the deadline, and the associate’s involvement with the opposition, may cause problems if she leaves before it is filed. It certainly is reasonably foreseeable that dropping an opposition on another lawyer’s lap at the last minute could cause prejudice to the client in the form of a less than optimal opposition. Accordingly, an associate who leaves the firm with that impending deadline risks violating Rule 3-700(A)(2).
The associate who runs out on the client, thereby causing some foreseeable prejudice, not only risks violating her ethical obligations, but also risks civil liability. Taking the example of the opposition to the motion to dismiss, suppose another lawyer has to quickly throw together the opposition and, despite his best efforts, the motion to dismiss is granted. To the extent the client decides to sue the law firm for legal malpractice, there is nothing stopping him from naming the departed associate as a defendant. And, whether or not the law firm steps up to defend and indemnify the associate, being named in a legal malpractice lawsuit—especially in our “Above the Law” world—is never fun. Better to take reasonable steps to avoid problems in the first place, even if it means delaying a job move for a few days, weeks, or even months.
The State Bar’s Committee on Professional Responsibility and Conduct addressed many of these issues in its Formal Opinion 2014-190. That opinion discussed a hypothetical law firm dissolution and the accompanying obligations of three different lawyers at the dissolving firm—the primary relationship partner, the associate working on a particular client matter, and an unrelated partner in a different practice group. In this hypothetical dissolution, everyone, including the associate, was running for the doors, but nobody wanted to take the particular client with him or her. Perhaps most striking about the opinion was the notion that the associate had any duties at all beyond dutifully drafting her exit memo. The opinion makes clear, however, that the associate had the same duties under Rule 3-700(A)(2) as any other lawyer in the firm—that is, to take reasonable steps to avoid reasonably foreseeable prejudice to the client. Discussing an earlier opinion (Formal Op. 1985-86), Formal Opinion 2014-190 states that, although the associate was an employee and not a partner, Rule 3-700(A)(2) applies equally to her. Specifically Rule 3-700(A)(2) applies to all lawyers in the firm, “regardless of their employment status.” Formal Op. 2014-190, at 3. Where the typical reasonable steps—exit memo, conferring with other lawyers at the firm, etc.—prove insufficient to the point where the associate does not have a reasonable basis for believing the client’s matter will be appropriately handled, then she may have to delay her departure until the client’s interests are sufficiently protected. That may sound harsh, but a lawyer simply cannot abandon a client, and that is exactly what the associate would be doing if nobody at the law firm could or would competently continue handling the client’s matter after the associate left.
It is important to remember that “reasonable steps” may differ depending on a lawyer’s status with her law firm. There may be limits to what a first year associate can do to get another lawyer to step up to the plate to take over a matter. A partner may have more ability to force the issue with another lawyer and, thus, a partner’s “reasonable steps” may be different and possibly more demanding.
The bottom line is that when an attorney, including even the most junior associate, decides to leave a law firm, it is considered a withdrawal under Rule 3-700(A)(2) and, consequently, she must consider her ethical obligation to take reasonable steps to avoid reasonably foreseeable prejudice to her clients. What those reasonable steps are will depend on the specific circumstances. In many cases, preparing a simple exit memo may be enough. In other cases, the lawyer must do more to ensure that other attorneys at the firm will assume responsibility for the matter, including any impending deadlines, upon her departure. But the lawyer who rushes out the door without sufficiently considering her ethical obligations to the firm’s clients does so at her peril.
Scott B. Garner is a partner at Umberg/Zipser LLP in Irvine, California. His practice focuses on complex business litigation, with a particular emphasis on legal malpractice defense and legal ethics. He currently serves as an officer (Secretary) of the OCBA, as Co-Chair of the OCBA Professionalism & Ethics Committee, and as Co-Chair of the OCBA Civility Task Force. From 2010-2016, Scott served on the California State Bar’s Committee on Professional Responsibility and Conduct, serving as Chair in 2014-2015. Scott can be reached at email@example.com.