On this blog, I’ve discussed various issues that arise when lawyers leave their firms. (When and how should lawyers inform clients that they are leaving their law firm?, When must lawyers inform their law firm that they are leaving?, General rules regarding solicitation of staff and associates when leaving a law firm).
One issue that I have not discussed is what documents or work product may lawyers take with them when they leave. Lawyers often refer to previously drafted papers when drafting anew, so they would reasonably want to take certain “form files” when they leave. But can they without permission?
The American Bar Association has taken the view that to the extent that “documents were prepared by the lawyer and are considered the lawyer’s property or are in the public domain, she may take copies with her.” See ABA Formal Ethics Op. 99-414 (1999); see also Alaska bar Assoc. Ethics Op. 2005-2. “Otherwise, the lawyer may have to obtain the firm’s consent to do so.” See ABA Op. 99-414. “[T]he question of whether a departing lawyer may take continuing legal education materials, practice forms, or computer files generated during their practice turns on principles of property law and trade secret law.” See Alaska Bar Op. 2005-2.
While no Georgia case has directly ruled on the issue, the Court of Appeals has discussed the issue briefly. In Jackson v. Ford, 252 Ga. App. 304, 311 (2001), a former associate sued his former law firm for failure to pay bonus compensation. The law firm counterclaimed for conversion, alleging that the former associate wrongfully took firm work product with him upon his departure.
The former associate admitted that he took copies of briefs that he had authored, some of which were pulled from his trash can. In addition, the former associate copied onto computer disks various memos and briefs that he had personally prepared.
The former associate asserted that he only took his own work product and not work product or property belonging to his former law firm and argued that attorneys should not be subject to such a conversion claim when they leave a law firm “under less than ideal circumstances.” In response, the law firm argued that the work product belonged to the firm, even if authored by the former associate.
After noting that neither party offered any legal authority on whether the law firm owned the work product generated by the former associate during his employment, the Court of Appeals did not reach the issue of work product ownership.
Ultimately, the Court of Appeals held that summary judgment on the conversion counterclaim was precluded because there was a question of fact as to whether the former associate converted the physical paper and computer disks that contained the work product taken by the former associate.