How do I leave my firm and take my favorite clients?
October 8, 2012 9:10 AM Subscribe
Lawyers making a move to a new firm, how do you handle approaching clients about coming with you? I'm especially interested in details from attorneys who have done this and clients who have gone with an attorney making a move, especially in the last three years.
How do you inform clients of your pending move? How much notice is appropriate? Is this something best asked after the move is made so as to not upset the current firm? If so, how does one anticipate what the volume of business will be?
At what point does the current firm get notice of the departure and/or client departures?
Anything else I'm not thinking of related to this question will be very helpful.
How do you inform clients of your pending move? How much notice is appropriate? Is this something best asked after the move is made so as to not upset the current firm? If so, how does one anticipate what the volume of business will be?
At what point does the current firm get notice of the departure and/or client departures?
Anything else I'm not thinking of related to this question will be very helpful.
I'd be freaking amazed that there isn't some wording in whatever papers you signed with the current law firm that forbid you from poaching clients.
posted by Thorzdad at 9:23 AM on October 8, 2012
posted by Thorzdad at 9:23 AM on October 8, 2012
If you communicate with the clients before leaving the firm then you are opening yourself up to getting sued. I recommend writing these clients *after* your departure, to let them know that you have left, and further stating that *if* they would like for you to continue to assist them then they should contact your former firm and ask for their file.
posted by chicxulub at 9:26 AM on October 8, 2012 [1 favorite]
posted by chicxulub at 9:26 AM on October 8, 2012 [1 favorite]
Best answer: It is, most definitely, the client's choice.
Your key is this. Get your own ethics counsel, it will be worth it. You'll need an opinion prepared regarding the right of a client to choose their own counsel. Take ethics counsel's advice on when, where and how you are to do this. Have your own counsel prepare a letter to the firm you are leaving so that you have them on notice as to what the right thing to do is. Putting a lawyer on notice of the rules is critical, because they will take each step with that notice in mind.
Have your own counsel on this. Luckily for me, my old boss already had one and they didn't fight me taking my clients. They all came with me.
posted by Ironmouth at 9:26 AM on October 8, 2012 [2 favorites]
Your key is this. Get your own ethics counsel, it will be worth it. You'll need an opinion prepared regarding the right of a client to choose their own counsel. Take ethics counsel's advice on when, where and how you are to do this. Have your own counsel prepare a letter to the firm you are leaving so that you have them on notice as to what the right thing to do is. Putting a lawyer on notice of the rules is critical, because they will take each step with that notice in mind.
Have your own counsel on this. Luckily for me, my old boss already had one and they didn't fight me taking my clients. They all came with me.
posted by Ironmouth at 9:26 AM on October 8, 2012 [2 favorites]
From my experience as someone who has hired lawyers/dealt with lawyers in the past, lawyers who move to a new firm and want me (their old client) to come along for the ride do more or less what Ironmouth says.
I am not a lawyer but have dealt with lots of 'em.
posted by dfriedman at 9:45 AM on October 8, 2012
I am not a lawyer but have dealt with lots of 'em.
posted by dfriedman at 9:45 AM on October 8, 2012
Also, although it's not clear from your question, if this is a speculative question based on something you might actually do, might not want to have your username associated with this question.
posted by Patbon at 9:48 AM on October 8, 2012
posted by Patbon at 9:48 AM on October 8, 2012
There are important ethical considerations. You will want to read, among other things, ABA Formal Ethics Opinion 99-414, the relevant ethics rules (and more importantly, opinions) of your jurisdiction, and any number of written guides or articles about this very topic (example 1, example 2, both from 30 seconds of googling). Ironmouth's suggestion that you get your own counsel is good.
posted by Partial Law at 10:07 AM on October 8, 2012 [1 favorite]
posted by Partial Law at 10:07 AM on October 8, 2012 [1 favorite]
Best answer: I'd be freaking amazed that there isn't some wording in whatever papers you signed with the current law firm that forbid you from poaching clients.
IAAL, IANYL.
Prepare to be freaking amazed. At least in my state, non-compete agreements are enforceable against attorneys because they restrict a client's ability to have the lawyer of his choice. I understand that this is the general case in the United States, but such law of course varies from state to state.
I agree with Ironmouth's advice.
posted by Tanizaki at 10:26 AM on October 8, 2012
IAAL, IANYL.
Prepare to be freaking amazed. At least in my state, non-compete agreements are enforceable against attorneys because they restrict a client's ability to have the lawyer of his choice. I understand that this is the general case in the United States, but such law of course varies from state to state.
I agree with Ironmouth's advice.
posted by Tanizaki at 10:26 AM on October 8, 2012
What Ironmouth said. But also, this can, sometimes, depend on the relationship you have with your current firm, and how that firm tracks and treats clients, and what kind of relationship your old firm has with your new firm. When lawyers left my (former, very large) law firm, if things were on generally good terms, there were discussions that involved dividing up particular cases or clients. Other times, lawyers were immediately escorted from the building without so much as a goodbye, while everyone panicked about which clients would be contacted by which lawyers and what would be said. Which is all a long way of saying that in addition to the ethical considerations, there are practical ones that creep up as well, that are highly dependent on your particular situation.
posted by dpx.mfx at 10:28 AM on October 8, 2012
posted by dpx.mfx at 10:28 AM on October 8, 2012
Your new firm should have ethics and contract counsel who specialize in the proper solicitation and transition of clients of lateral hires. Do exactly as they say. Insist they hire one for you if you have a sizable client list and they don't have the capacity in-house.
In general if you are moving to a firm with similar capabilities and billing rates, you should expect to be able to move most of your clients who are truly your clients -- people you brought in or who have been firmly handed over to you years in the past, and for whom you are the primary billing partner. (Someone you brought in whom someone else services isn't necessarily going to stay with you.) The clients you lose will more often be due to something at the new firm rather than your old firm fighting to keep them -- unwaivable conflicts, your client's general counsel not liking your new firm for some past history you don't know about until too late, etc. As to whether your old firm hates you for it, it really depends upon whether that firm regularly engages in the lateral market itself, and whether it perceives you as someone who "owes" your career and client list to the institution.
If you are moving to a firm with lesser capabilities, or higher billing rates, expect a very high attrition rate in your client list. Just how it is.
In terms of the legal / contractual elements, it's a three part analysis by the way.
First, state by state -- most states limit, but to varying extents (by combination of rule and precedent) the enforceability of anti-solicitation clauses of employment and partnership agreements, for just the reason Tanizaki says -- the overarching right of the client freely to choose counsel.
Second, contract -- what does your old employment or partnership agreement say? What are the established practices there in the absence of explicit, faithfully followed, contract terms?
Third, type of billing arrangement and status -- if you are trying to move over clients who pay hourly fees in arrears and are current on their bills, that's pretty simple. If you are trying to move over clients who have posted large retainers, or who have large overdue bills, that can be more complicated. If you have clients who are engaged on contingency, that can get very complex, very fast.
posted by MattD at 11:24 AM on October 8, 2012
In general if you are moving to a firm with similar capabilities and billing rates, you should expect to be able to move most of your clients who are truly your clients -- people you brought in or who have been firmly handed over to you years in the past, and for whom you are the primary billing partner. (Someone you brought in whom someone else services isn't necessarily going to stay with you.) The clients you lose will more often be due to something at the new firm rather than your old firm fighting to keep them -- unwaivable conflicts, your client's general counsel not liking your new firm for some past history you don't know about until too late, etc. As to whether your old firm hates you for it, it really depends upon whether that firm regularly engages in the lateral market itself, and whether it perceives you as someone who "owes" your career and client list to the institution.
If you are moving to a firm with lesser capabilities, or higher billing rates, expect a very high attrition rate in your client list. Just how it is.
In terms of the legal / contractual elements, it's a three part analysis by the way.
First, state by state -- most states limit, but to varying extents (by combination of rule and precedent) the enforceability of anti-solicitation clauses of employment and partnership agreements, for just the reason Tanizaki says -- the overarching right of the client freely to choose counsel.
Second, contract -- what does your old employment or partnership agreement say? What are the established practices there in the absence of explicit, faithfully followed, contract terms?
Third, type of billing arrangement and status -- if you are trying to move over clients who pay hourly fees in arrears and are current on their bills, that's pretty simple. If you are trying to move over clients who have posted large retainers, or who have large overdue bills, that can be more complicated. If you have clients who are engaged on contingency, that can get very complex, very fast.
posted by MattD at 11:24 AM on October 8, 2012
I have done this twice now. Ironmouth's advice is prudent, though outside ethics counsel is possibly what we'd call "abundance of caution."
In my case, I reviewed the relevant state rules of professional conduct regarding the client's rights in this area. In many, if not most, states the client has the right to the lawyer of his/her/its choice. Also, in many such states, contracts that violate the bar ethics rules may be unenforceable. So, you should review your employment agreement, if there is one, and determine what rules of law come into play.
Once I did those things, I spoke with my employers and we agreed upon language in a letter that we then jointly signed and had mailed to each and every one of my clients. In cases where the client was going to be best served by a particular choice, we gave them that advice.
This worked out well for me, and I receive referrals from both firms to this day. On the other hand, that is also a prevailing local practice among the lawyers with whom I associate. You should give due regard for local custom and ask yourself what other non-legal results might obtain from a certain course of conduct. That is to say, while the law might be very clear, your decisions in this area may affect your reputation in the long run with other lawyers, firms or prospective clients.
That said, if clients are to be given a meaningful choice and you still don't know how many clients will go with you, the answer is probably "not many."
posted by Hylas at 2:36 PM on October 8, 2012
In my case, I reviewed the relevant state rules of professional conduct regarding the client's rights in this area. In many, if not most, states the client has the right to the lawyer of his/her/its choice. Also, in many such states, contracts that violate the bar ethics rules may be unenforceable. So, you should review your employment agreement, if there is one, and determine what rules of law come into play.
Once I did those things, I spoke with my employers and we agreed upon language in a letter that we then jointly signed and had mailed to each and every one of my clients. In cases where the client was going to be best served by a particular choice, we gave them that advice.
This worked out well for me, and I receive referrals from both firms to this day. On the other hand, that is also a prevailing local practice among the lawyers with whom I associate. You should give due regard for local custom and ask yourself what other non-legal results might obtain from a certain course of conduct. That is to say, while the law might be very clear, your decisions in this area may affect your reputation in the long run with other lawyers, firms or prospective clients.
That said, if clients are to be given a meaningful choice and you still don't know how many clients will go with you, the answer is probably "not many."
posted by Hylas at 2:36 PM on October 8, 2012
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posted by stowaway at 9:23 AM on October 8, 2012