I have previously discussed when lawyers leaving a law firm can or should inform their clients that they are leaving. But when are lawyers required to inform their firm that they are leaving?
Attorneys do not breach a fiduciary duty to their law firm by making plans to leave the firm before announcing the withdrawal. Prior to leaving, attorneys may make pre-departure logistical arrangements such as bank financing, leasing office space, new business cards, and the like. They are not, however, entitled to solicit clients for a rival law firm before the end of their employment nor can they properly do other similar acts in direct competition with the law firm.
A partner generally has no duty to disclose to other partners that the partner is merely considering leaving the firm. But once the possibility of leaving becomes an affirmative intention to leave the firm, a partner has an affirmative duty to notify the firm. And once an attorney (whether a partner or an associate) knows he or she will be withdrawing from a law firm, the attorney should provide reasonable notice to the law firm.
Typically, partnership agreements contain explicit notice requirements for departing partners. At a minimum, a departing attorney must comply with notice provision in a partnership or employment agreement. However, other factors should be considered when determining what is reasonable notice, including past practices surrounding withdrawals from the firm and the possibility of retribution from the firm that may cause harm to clients.
A partner seriously considering withdrawal from a law firm should inform the other partners if he or she is about to make a material decision in reliance on the partner’s continued membership in the firm. For example, if a law firm is about to renew a lease, add additional space, purchase equipment, or hire or fire employees, notice should be given to the law firm that the partner may possibly be withdrawing.
Certainly, if asked, a partner should tell the truth about any plans for withdrawal. Such a duty is imposed by the Rules of Professional Conduct. Rule 8.4 dictates that a lawyer must not “engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation….” Thus, there is an implied ethical duty to be candid and fair with a lawyer’s partners and/or employer. Failing to do so would also likely be deemed a breach of fiduciary duty.