Law firm associates typically have options with how to grow their careers. Some may leave their firm to go in-house or work for the government, but it has become common for associates to move between firms more than once in their career. Although law firm partners have specific fiduciary, ethical and contractual obligations when they move firms (relating to soliciting clients and soliciting staff, for example), law firm associates also have obligations, including duties to clients and to their firms.

Although lateral movement of associates is common, and disputes over those departures are less common, they do happen. Some litigation has arisen over whether the associates improperly took files, solicited clients or acted contrary to their ethical and legal obligations. Thus, in moving to a new firm, it behooves associates to consider the following issues.

Checking for Conflicts

Typically, a new employer will not provide an offer of employment to an associate unless conflicts checks have been run and resolved (including by implementing an ethical wall to restrict the associate from working on matters related to prior work). By the time an associate is ready to leave one firm and join another, these issues should all have been resolved. However, it is critical for any associates looking to move to be candid and thorough in their disclosure of existing and past client work. An undisclosed conflict could become a headache for the lawyer at their new firm and, if imputed to their new colleagues, could preclude that firm from working on a significant representation. A motion to disqualify is not a good way to begin a career with a new firm.

Similarly, to the extent that the offer from the new firm discloses certain potential conflicts and provides guidelines for the associate to avoid imputation of a conflict to the firm, it is imperative for the associate to follow those guidelines. Ignoring ethical walls or other restrictions could not only put the associate’s employment at risk but could also get them in trouble with a court or bar.

Notify the Firm and Make a Plan

Once the associate has an offer in hand, the next step is generally for the associate to notify their existing firm of their intended departure so that an agreement can be reached on a departure date. It is important for associates to review any applicable employee handbooks and comply with all requirements regarding departure, including notifying the firm in writing of their resignation and date of departure. Having a set departure date helps document when the associate’s duties and professional relationship will end.

A departing associate also owes ethical duties to clients. Thus, it is not appropriate for an associate to ignore deadlines or other responsibilities simply because they have given their notice. A failure to comply with the standard of care can still have ramifications for that associate. Selecting a departure date is not just about the business decision to leave the firm, but associates can also take steps to make sure there is a plan and coverage to take over their files once they depart.

The law firm from which the associate is leaving may have other requirements in place, governing the return of laptops or any other technology belonging to the firm. The departing associate can also speak with a supervising partner about the status of matters, whether the associate needs to file any withdrawals with courts, and what other notifications are appropriate.

What Communications Are Permitted?

When leaving a law firm, associates may be inclined to review their files for any materials they think could be helpful to them at their new firm. However, associates should not copy or take client files with them without prior written authorization from the client and the current firm. That is because, unless a client directs otherwise, client files are to remain in the custody of the law firm and most firms have policies that prohibit the taking of client materials without a written authorization signed by the client. An attorney taking files without prior authorization risks not only breaching their obligations to their current law firm but also may violate the duty of confidentiality owed to the client by taking confidential information to another law firm without the client’s consent.

If an associate is solely responsible for specific client matters at their firm, it is important that they are proactive about meeting their duties to those clients to ensure continued representation, whether at the associate’s new firm or by the associate’s former colleagues at their old firm. Simply leaving the firm, without either advising the client, terminating the representation, or helping the transition, could be a breach of the associate’s ethical duties. If, after departing, an associate learns that a client wants to move with the associate to the new firm, the client can notify the old firm in writing and direct that firm to send the client’s files to the new firm. The associate can also work with their new firm to confirm the retention, including potentially through the execution of a new engagement letter. The departing associate should also take steps prior to leaving to make sure that he or she is not running afoul of the rules regarding attorney solicitation of existing clients.

By being mindful of these ethical issues, associates can make sure that their transition to a new firm is ethical and problem-free.