It is well established that a client is not the property of an attorney or law firm. The law recognizes that a client has the right to fire a lawyer for any reason or for no reason. Thus, when law firms split apart, the clients ultimately get to choose who will continue to represent them.
In light of this black letter principle, what can lawyers splitting apart do? There are numerous options from which to choose. Here are a few to consider:
Lawyers might simply agree to provide all clients with joint notice informing them that the law firm is splitting up and that the clients they have the right to choose the lawyer to continue the representation, whether inside or outside of the dissolving firm.
Lawyers could agree among themselves which client should go with which lawyer and advise each client accordingly, but clients are free to ignore those recommendations and choose whoever they want. Indeed, lawyers cannot enter into an agreement that provides that lawyers will retain certain files without client consent. So even if partners agree on how to split up their clients, they must get client approval for the transfer of files.
For cases taken on a contingency, lawyers may agree to a fee split on those cases regardless of which lawyer the clients choose. Such agreements regarding the splitting of fees among former partners upon the dissolution of a law firm are enforceable, if properly structured.
Whichever path partners choose, they should try to reach agreement on the front end and put provisions in their partnership agreement explicitly stating what will happen upon withdrawal or dissolution. Partners can always alter course when the withdrawal or dissolution occurs, but reaching consensus is much easier on the front end.