The inquirer poses the following situation: A partner has departed from a law firm. The firm anticipates that clients on whose matters the departed partner worked while at the firm will call the law firm seeking the ex-partner's services. It is assumed from the tenor of the inquiry that the ex-partner is continuing to practice law in and around this region. It is also assumed that no joint or individual announcement has been issued to clients regarding the partner's departure.
The inquirer asks the following questions:
1. When the caller asks the firm receptionist for the ex-partner, can the receptionist question the caller concerning the nature of the call as opposed to simply providing the telephone number of the former partner?
2. If the answer to the foregoing question is yes, and the caller then states that he is requesting the services of the ex-partner for a new legal matter, can the firm then ask the caller whether someone at the film could help them instead?
The Committee concludes that in addition to providing the ex-partner's new business address and telephone number, the law firm's receptionist (or other representative) may ask the caller if the call relates to a legal matter and, if the caller indicates that it does, the firm's representative may propose the firm's assistance to the caller.
The Committee's conclusions emanate from two basis propositions:
1. The client has the ultimate right to select counsel. See Rules 1.2(a) and l.16(a)(3).
2. Clients serviced by one lawyer in a firm are clients of the firm. Cf. Rule 1.10 and Comment thereto.
That a client enjoys the freedom to choose between the ex-partner and the law firm, or indeed, to seek counsel from a third professional, is a fundamental proposition. The client's unequivocal power to discharge (and, thus, the power to select) a lawyer must be respected by an attorney. See Rule 1.16(a)(3). Likewise, since a lawyer is ethically obliged to abide by a client's decisions concerning the objectives of representation, a lawyer must necessarily honor the client's choice between one firm and another. See also Rule 1.16(d).
Moreover, Rule 1.4 obligates an attorney to keep clients up to date about the status of a matter, comply with client requests for information and explain a matter so that a client can make informed decisions. Therefore, the Committee believes that there is an obligation on the part of the law firm to immediately provide to inquiring clients and former clients sufficient information that would allow the client to make prompt contact with the ex-partner, prior to offering the firm's services as a alternative.
However, once that information is provided, there is no ethical prohibition against asking the caller if the call concerns a legal matter and if someone at the firm can be of assistance. Rule 7.3(a) permits direct solicitation of a prospective client with whom the lawyer or firm has had a prior professional relationship. The Committee points out, however, that if the caller resists the invitation of the firm to be responsive or otherwise makes it clear that the caller only wants to speak with the ex-partner, continued persistence or heavy-handedness by the firm runs the risk of violating Rule 7.3(b) s proscription against direct solicitation of persons who have displayed disinclination to deal with the firm or communications involving coercion, duress or harassment. Rule 7.3(13)(2)and (3). Of course any communication by representatives of the firm with the caller must comply with Rule 7.1 which prohibits false or misleading communications about the lawyers in the firm or the firm's services including any inaccurate comparison with the ex-partner's services. See Rule 7.1(c).
Although the inquiry is narrow in scope, the general subject of client relations in the context of law firm separations is of considerable interest and concern to the Bar. Therefore, the Committee also refers the inquirer to the Committee's Opinion 92-8, dealing with the ethical obligations of the departing lawyer regarding client contact. In addition, a most comprehensive treatment of the departing lawyer's duties vis a vis clients can be found in an article by Professor Vincent Robert Johnson, "Solicitation of Law Firm Clients by Departing Partners and Associates Tort, Fiduciary, and Disciplinary Liability," 50 U. Pitt. L. Rev.1 (1988).
For purposes of this Opinion, the Committee does not consider the information that the departure was "less than amicable" or that some of the clients who may call "were initially brought to the firm by the ex-partner" to be relevant here. Likewise, this Opinion does not depend upon the departing lawyer's status as a former partner as opposed to a former associate.
While the Inquirer specifically poses the expectation that the calls will be from former clients, for reasons discussed herein, in connection with Rule 7.3(a), distinctions between former and current clients is not material.
The Committee assumes that there is no issue under Rule 1.1 concerning the competence of someone at the firm to provide appropriate representation.
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