Conference examines the new and emerging rules of lawyer mobility

Lawyer mobility was a dominant theme at the 32nd National Conference on Professional Responsibility, convened May 31 to June 4 in Vancouver.

Lawyers changing firms and law firm breakups and mergers create special risks of ethical lapses, and were key topics at the conference.

Lawyer mobility is an emerging field of law, noted Robert W. Hillman, a law professor at the University of California at Davis. "If you just look at questions from the perspective of professional responsibility, you get one set of answers," he said. But considerations also arise under the law of partnership and of agency, and the emerging field of lawyer mobility law has not done a good job of reconciling the varying fiduciary duties of each.

Hillman, Leslie D. Corwin of New York, and Lynda C. Shely of Scottsdale addressed timing issues of notifying partners and clients when a lawyer departs a firm, and the differences that arise when the departing lawyer is a partner, an associate or support staff in a firm, with differing levels of responsibility for client matters.

Corwin said a lawyer's fiduciary obligation to a client trumps the fiduciary obligation to a firm, meaning lawyers cannot enter non-competition agreements with a firm. But he added the lawyer cannot advise clients of an impending departure from a firm until after giving proper notice to the firm. If there is as provision in the partnership agreement governing notice procedures, the lawyer should follow it exactly, he said.

Shely cautioned that clients are not chattel, and the law firm and individual lawyers do not have the option of dividing them up. And Corwin cited a client's right to counsel of one's own choice. Hillman noted rules of partnership fiduciary duties suggesting "you don't grab for your clients until the partners have an opportunity to compete as well." They agreed that an ABA ethics opinion [PDF] on the topic gives general guidance, but leaves many questions unanswered.

Shely provided a checklist [PDF] of ethical obligations for law firm changes, covering the duties of the lawyers and the firm, and suggesting issues to consider when planning a law firm merger.

The conference also featured presentations on screening lawyers in their new placements, to avoid conflicts that might disqualify a firm.

During the five-day annual conference, some 30 Canadian lawyers joined nearly 300 colleagues from the United States in addressing issues of ethics, discipline and regulation, and projecting the impact of demographic trends on the future of the profession. The 22nd Forum on Client Protection, held in conjunction with the conference, addressed issues related to funds for client protection and strategies to prevent client harm. The Conference and the Forum are presented annually by the ABA Center for Professional Responsibility.

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