It’s getting a bit commonplace now, isn’t it? You go years without doing a two-part blogpost and then you do another one the same week? Kind of takes all the excitement out of the idea of a two-part post, doesn’t it?
Sure. But in my defense, the Tennessee BPR went roughly 3 years before issuing a new Formal Ethics Opinion and now, just a few months after that last one, they have put two draft opinions out for public comment.
Both opinions have a comment deadline of May 1, 2023.
Today, we will tackle the first of the two, proposed Formal Opinion 2023-F-169 which finally provides some institutionalized guidance on the duties of law firms and lawyers when a lawyer is departing the firm to practice elsewhere. Early next week, we will address proposed Formal Opinion 2023-F-170 which tries to bring Tennessee into the modern world when it comes to electronic payments for fees but gets one thing very, very wrong.
The good news is that proposed opinion 169 doesn’t really get anything wrong at all. Even if issued as-is, it could prove to be one of the most important opinions the BPR has ever put out because it addresses a topic that is the cause of much strife, and it addresses the topic fairly.
If it can be criticized at all, it can be said to not go far enough or into enough detail on the issues it addresses. The Tennessee draft opinion pulls from both ABA Opinions issued over the years on this topic (the one in 1999 and the much more recent 2019 opinion) and from a 2010 Arizona opinion for support for some of its general statements, but largely appears to make its points standing on its own, i.e. based on interpreting the relevant TN rules. It identifies those, of course, as RPC 1.4, RPC 5.1, and RPC 5.6.
It confirms that when a lawyer decides to depart from one firm to go to another firm that the client is entitled to be notified of the development and be given the choice whether to go with the lawyer, stay with the firm, or seek other options for representation altogether. It also advises that law firms and lawyer should attempt to reach agreement on a joint notification but acknowledges that either the lawyer or the law firm have the ability to just provide the notice unilaterally because each side has ethical obligations of communication to the client under RPC 1.4. The closest the opinion gets to try to draw lines about which clients are ones that must be notified about a lawyer’s departure is to say that the joint letter that should be attempted would go to “firm clients with whom the departing lawyer has had significant contact.” It also offers sound advice that law firms do not always embrace in such circumstances by counseling that:
“The law firm management should assess if it has the capacity and expertise to offer to continue to represent the clients. If the departing lawyer is the only lawyer at the firm with the expertise to represent a client on a specific matter, the firm should not offer to continue to represent the client unless the firm has the ability to retain other lawyers with similar expertise.”
The opinion further touches on some, but not all, of the contractual issues that can be in play in the form of partnership or similar agreements that can be a point of battle in these situations. Specifically, it acknowledges that such a contract can impose a requirement of a certain length of time for notice to the law firm of the planned departure by the lawyer. But it indicates that such restrictions cannot go so far as to violate RPC 5.6. The only detail it offers for how one might figure out where such a line would be is to state: “law firm notification requirements cannot be so rigid that they restrict or interfere with a client’s choice of counsel or serve to unreasonably delay the diligent representation of a client.”
The opinion also echoes the sentiments of the ABA’s 2019 opinion in addressing that firms cannot simply shut off the departing lawyer’s access to information as a preemptive way of trying to tip the scales of what a client may choose to do. Specifically, the opinion offers this paragraph as a warning away from such efforts:
Firms cannot prohibit or restrict access to email, voicemail, files, and electronic court filing systems where such systems are necessary for the departing lawyer to represent clients competently and diligently during the notice period. Once the lawyer has left the firm, the firm should set automatic email responses and voicemail messages for the departed lawyer’s email and telephones, to provide notice of the lawyer’s departure, and offer an alternative contact at the firm for inquiries. A supervising lawyer at the firm should review the departed lawyer’s firm emails, voicemails and paper mail in accordance with client directions and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer.
Of course, even that guidance cannot stop a firm from exercising rights to turf the lawyer as soon as they give their notice of a planned departure rather than allow the lawyer to continue to work there until the last day of a contractual notice period.
Finally, the opinion also attempts to encourage law firms, with a reference to duties under RPC 5.1, to adopt policies that will give reasonable assurance that these kinds of events will be handled in a manner that involves all of the relevant lawyers complying with their ethical obligations.
What the opinion doesn’t do, and it may or may not be too much to ask of such an opinion, is to get a bit deeper into the kinds of issues that will still be the source of future disputes in a world where this opinion exists as definitive guidance. Those kinds of issues involve the rights of departing lawyers versus their firm as to non-client materials, such as work product and email contacts and form files. They also involve who decides whether contact with a client was significant enough to require notice of the departure. Finally (at least for purposes of this post), they also involve what the rights are of the other party if one of them goes ahead and unilaterally starts contacting the relevant clients rather than first making the effort to agree on a joint communication.