Joint Opinion 99-100
Probably no other professional situation raises as many potential ethical dilemmas, which must be considered together with applicable substantive law, as a lawyer's departure from one firm and move to another. This opinion summarizes the key concerns which should be addressed, applicable Pennsylvania Rules of Professional Conduct and pertinent opinions of the Philadelphia Bar Association's Professional Guidance Committee ("Philadelphia Committee").
1. The Fundamental Rule: The Client Must Decide .
Recognizing that a client has the absolute right to discharge a lawyer at any time, when a lawyer moves from one firm to another, the decision is entirely up to the client as to who will continue the representation. Laurel S. Terry, Ethical Pitfalls and Malpractice Consequences of Law Firm Breakups, 61 Temp. L. R. 1055, 1064 (1988) [hereinafter "Ethical Pitfalls"]. A lawyer must, however, remain aware of the duties imposed by the Rules of Professional Conduct, (Rules and Rule) including competence (Rule 1.1), diligence (Rule 1.3), and communication (Rule 1.4) owed to clients throughout the course of representation. Rule 1.16(a)(3) requires an attorney to withdraw from the representation if discharged by the client. Further, the comment to the rule states that "a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services." e.g., In re Cooperman, 83 N.Y.2d 465, 473, 633 N.E.2d 1069, 1072 (N.Y. 1994). In a prior opinion, the Philadelphia Committee noted generally that a client served by one lawyer in a firm is also a client of the firm. Philadelphia Bar Assn. Prof. Guid. Comm. Guidance Op. 94-30 (1994).
Thus, if a client elects to stay with the firm after the lawyer's departure, no action need be taken by the client. If, however, the client wishes to terminate the firm's representation and have the departing attorney resume the representation at his or her new firm, the client is free to do so.
2. Communicating With The Client
In the face of this seemingly simple principle that the client is the sole and absolute decisionmaker, tensions obviously result in the context of attorney departures. The departing lawyer wants to take as many clients as possible to the new practice and the firm wants to retain its clients. Thus, questions regarding the nature, timing and scope of communications with the client become critical.
The General Rule
Rule 7.2(a) permits a lawyer to "advertise services through . . . written communications not within the purview of Rule 7.3." Rule 7.3, in turn, prohibits in person or telephone solicitation of prospective clients with whom the lawyer has no family or prior professional relationship and also prohibits written solicitation of prospective clients where, among other things, the person has expressed a desire not to receive such communications. Implicit in a reading of these two rules is the conclusion that a departing lawyer may in fact have communications with clients with whom the lawyer had a prior professional relationship. Of course, such communications are further constrained by Rule 7.1, which prohibits false or misleading communications, subjective claims that cannot be verified and comparisons of services which cannot be substantiated.
Timing of Communication
The timing of any notice is important, but does not appear to be specifically covered by the Rules of Professional Conduct. There is, however, case law that a lawyer owes a fiduciary duty to his or her current firm by virtue of the employment or partnership relationship. See, Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 435-6, 393 A.2d 1175, 1184 (1978); Vincent R. Johnson, Solicitation of Law Firm Clients by Departing Partners and Associates: Tort, Fiduciary, and Disciplinary Liability, 50 U. Pitt. L. Rev. 1, 98-100 (Fall 1988). Depending on the circumstances and the content of the communication, communication with the firm's clients about the lawyer's impending departure before the firm is aware of the departure may be construed as an attempt to lure clients away in violation of the lawyer's fiduciary duties to the firm, or as tortious interference with the firm's relationships with its clients. See Meehan v. Shaughnessy, 404 Mass. 419, 535 N.E.2d 1255 (1989) (departing partners breached fiduciary duty owed to their firm by communicating with clients prior to departure, failing to advise fellow partners of clients they intended to solicit and sending clients a one-sided announcement on the letterhead of their old firm). Therefore, absent circumstances that would compromise the interests of the client, the prudent approach is that the departing lawyer should not notify clients of an impending departure until the firm has been informed of the lawyer's intention to leave the firm.
Form and Nature of Communication
Who should receive the notice of departure? The Philadelphia Committee has taken the position that it is appropriate for the departing lawyer and/or the firm to notify clients of a lawyer's departure, in the instances where the departing lawyer has a professional relationship with those clients. In Philadelphia Bar Association Professional Guidance Committee Guidance
Inquiry 92-8, the Philadelphia Committee considered the steps to be taken when a lawyer leaves a law firm so as to conform to the Rules of Professional Conduct. The facts presented to the Philadelphia Committee were as follows: A lawyer was given notice of termination based upon her firm's planned departure from the practice of law in Philadelphia. Some clients with whom the lawyer had direct responsibility learned of her termination and contacted her directly seeking her continued representation. These clients signed fee agreements with the lawyer and she notified her former firm of this event. (These actions were assumed to have occurred after she had departed.) Once departed, she contacted her former firm to arrange for the immediate delivery of the client's files. She confirmed to her former firm that its costs would be reimbursed and appropriate referral fees paid at a future date. She received a letter from her former firm accusing her of actively soliciting the clients prior to her termination date. She responded by denying these solicitations and began requesting turnover of the files.
Referring to Rule 1.4, which provides that a lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information, the Philadelphia Committee noted that the departing lawyer and/or her former firm must promptly communicate with all pre-existing clients to inform them of her changed status so that the clients have sufficient information to make an intelligent decision regarding their future representation. The Philadelphia Committee also referenced Rule 1.16(d), regarding termination of representation and the steps to be taken to protect the client, and concluded that the lawyer and/or the former firm must place pre-existing clients on notice of her departure. This may be accomplished by letter jointly authored by the firm and the departing lawyer, or by either party alone so that the client has notice of the change and can act accordingly.
With regard to the type of written communication that would be appropriate to send to pre-existing clients, the Philadelphia Committee relied on ABA Informal Opinion 1457 (April 29, 1980) and ABA Informal Opinion 1466 (February 12, 1981). Factors considered in those ABA Opinions were the form and content of the communication, the timing of the mailing and the proposed recipient of the mailing. ABA Informal Opinion 1457 addressed the propriety of a letter-form announcement sent by a lawyer advising that he had resigned from a law firm to become a member of a new firm. This was mailed soon after this change in status to clients with whom that lawyer had an active, open and pending matter and for whom that lawyer had direct responsibility. The form letter emphasized that the client had the right to decide how and by whom the pending matters would be completed, and did not urge the client to sever the existing lawyer/client relationship with the former firm. The ABA Committee found that this announcement was consistent with the Model Code of Professional Responsibility.
In ABA Informal Opinion 1466, a lawyer was resigning from his law firm to become a member of another firm and had proposed to mail a letter to clients for whom his former firm had open, active and pending matters for which he was directly responsible. The ABA Committee determined that the contents of the proposed letter were consistent with the Model Code of Professional Responsibility because:
the notice was mailed;
the notice was sent only to persons with whom the lawyer had an active lawyer/client relationship immediately before the change;
the notice was clearly related to open and pending matters for which the lawyer had direct professional responsibility immediately before the change;
the notice was sent promptly after the change;
the notice did not urge the client to sever the relationship with the lawyer's former firm and did not recommend the lawyer's employment, although it did indicate the lawyer's willingness to continue the representation in the matters;
the notice made clear that the client had the right to decide who would complete or continue the representation; and
the notice was brief, dignified and not disparaging of the lawyer's former firm. (Note--This opinion was issued in 1981 and predates current Rule 7.3 which permits blanket communication by mail. However, departing lawyers must honor contractual and fiduciary obligations to the firm. See Timing of Communication infra.)
The Philadelphia Committee noted that, although the ABA Opinions were limited to the facts presented, i.e., that the lawyer who was departing had direct responsibility for the client's matters, the policy considerations inherent in the ABA Opinions should also apply to communications by a departing lawyer with clients with whom the lawyer had some, although limited, contact at the former firm. In this regard, the Philadelphia Committee noted that although Rule 7.3 regarding direct contact with prospective clients was not directly on point, insofar as that rule deals with the situation where a lawyer had no prior professional relationship with the prospective client, the policy behind Rule 7.3 was sound and applicable to the facts of the case presented.
The Philadelphia Committee noted that, if the departing lawyer solicits the continued representation of pre-existing clients or prospective clients by written communication, the departing lawyer must keep a copy of the written communication for two years after its last dissemination along with a record of when and where it was used pursuant to Rule 7.2(b.)
Thus, while there is no prohibition against the notice to pre-existing clients being made in person or by telephone, if you wish to have a record of the communication, informing clients of the lawyer's departure, a letter will provide that record. In addition, the scope of the notice should be carefully limited. Clients should be told that they have the right to remain with the firm, as well as the right to switch lawyers and be represented by the departing lawyer or by a new lawyer. They should not be urged either to remain with the firm or to go with the departing lawyer. Rather, the letter should simply state the willingness of the departing lawyer or the firm to handle the client's matters. No disparaging remarks should be made about the firm or the departing lawyer, and the notice should not contain comparisons between the firm and the departing lawyer. Finally, the notice should be brief and dignified. Ohio Board of Commissioners on Grievances and Discipline Op. 98-5 (1998).
Protecting The Difficult Client
Although the departing lawyer may want to take as many clients as possible, the departing lawyer may also want to leave the difficult clients behind. In this situation, the departing lawyer must take care not to violate the duties imposed by Rule 1.3 (diligent representation) and Rule 1.4 (communication with the client). Therefore, the departing lawyer and/or the former firm must notify all pre-existing clients, including difficult clients, of the lawyer's departure. Philadelphia Bar Association Professional Guidance Committee Guidance Inquiry 92-8. The client will then decide who will continue the representation. See Ethical Pitfalls at 1064.
If the departing lawyer or former firm does not wish to continue representing such a client, the lawyer or firm is permitted generally to withdraw from the representation "if withdrawal can be accomplished without material adverse effect on the client." Rule 1.16(b). The lawyer or firm is also permitted to withdraw from the representation when the representation "has been rendered unreasonably difficult by the client" even if withdrawal will have an adverse effect on the client. Rule 1.16(b)(5); Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Informal Op. 94-125 (1994). Although withdrawal may be permissible, steps still must be taken to protect the client's interests. Rule 1.16(d). Thus, the client must be notified of the lawyer's and/or firm's decision to terminate the representation. In addition, the client must also be provided with sufficient time to retain a new lawyer following notification of the lawyer's and/or firm's decision to terminate the representation. Rule 1.16(d).
Communicating With Employees of The Former Firm
The departing lawyer must also take care if he or she solicits employees of the former firm to join him or her. As a general principle, the departing lawyer is free to solicit at-will employees of the former firm. Jacob v. Norris McLaughlin & Marcus, 128 N.J. 10, 31-32, 607 A.2d 142, 153 (1992); 2 Rudolf Callmann, The Law of Unfair Competition, Trademarks and Monopolies, Section 9.03 (1998). The departing lawyer cannot, however, solicit multiple employees if the solicitation is intended to "cripple, destroy or misappropriate a competitor's business organization." Id. Finally, if the departing lawyer induces employees who have entered into employment agreements with the former firm to join him or her, the departing lawyer may be liable to the former firm for interfering with these contractual relationships. Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d 838 (1957); Collinaini v. Honeywell, Inc., 411 Pa Super 166, 173-74, 601 A.2d 292, 295, cert. denied, 506 U.S. 869 (1992). The timing and nature of any communications between a departing attorney and firm employees are important in determining the propriety of those communications. Similarly, attorneys who may be approached about the prospect of leaving must be mindful of any contractual, fiduciary, common law or ethical duties they owe to the firm or to clients.
Responsibilities of the Former Firm
The same principles discussed in Part II apply to notices which the former firm may decide to send; that is, they may not encourage or discourage a client to either switch or keep lawyers, they should refrain from disparaging remarks and comparisons and they should be brief and dignified. See Joseph D. Shein v. Myers, 576 A.2d 985 (Pa. Super. 1990), alloc. denied, 617 A.2d 1274 (Pa. 1991).
In a fact pattern involving client inquiries to the former firm by telephone, Philadelphia Bar Association Professional Guidance Committee Opinion 94-30 dealt with a situation where a former firm anticipated that clients on matters for whom the departing partner had worked while at the firm would telephone the law firm seeking the former partner's services. It was assumed from the inquiry that the former partner was continuing to practice law in and around the region, and also that no joint or individual announcement had been issued to clients regarding the departure. The Philadelphia Committee also noted that the result would be the same regardless of whether the departing lawyer was a partner or an associate.
The first question presented was whether, when the caller asked the firm's receptionist for the former partner, the receptionist could ask if the call was regarding a legal matter, as opposed to simply providing the telephone number of the former partner. If the answer to that question were yes, and the caller stated his or her interest in requesting the services of the former partner for a new legal matter, the second question presented was whether the firm could ask the caller whether someone at the firm could help instead.
The Philadelphia Committee concluded that, in addition to providing the former partner's new business address and/or telephone number, the law firm's receptionist or other representative could properly ask the caller if the call related to a legal matter, and, if the caller indicated that it did, the firm's representative could properly propose the firm's assistance to the caller.
The Philadelphia Committee's conclusions came from two basic propositions. First, under Rule 1.2(a) and 1.16(a)(3), the client has the ultimate right to select counsel. Second, pursuant to Rule 1.10 and the comment thereto, clients serviced by one lawyer in a firm are clients of the firm.
The Philadelphia Committee concluded that, since a client enjoys the freedom to choose between the former partner and the law firm, or for that matter to choose a new attorney altogether and further, because a lawyer is ethically obliged to abide by a client's decisions in this regard and to keep clients up to date about the status of the matter and comply with client requests, it is incumbent on the part of the law firm to provide immediately to inquiring clients and former clients sufficient information that would allow the clients to make prompt contact with the former attorney, prior to offering the firm's services as an alternative.
Once that information had been provided, the Philadelphia Committee concluded, however, that there was no ethical prohibition against asking the caller if the call concerned a legal matter and if someone at the firm could be of assistance. The Philadelphia Committee referenced Rule 7.3(a), which permits communication with a prospective client with whom the lawyer or firm has had a prior professional relationship. The Philadelphia Committee further noted, however, that if the caller resisted the invitation of the firm to be responsive or otherwise made it clear that the caller wished to speak only with the former partner, continued persistence or heavy-handedness by the firm would run the risk of violating Rule 7.3(b), which prohibits direct solicitation of persons who have displayed a disinclination to deal with the firm. In addition, the Philadelphia Committee noted that Rule 7.1 prohibits false or misleading communications about the lawyers in the firm or the firm's services, including any inaccurate comparison with the former partner's services.
Retaining Lien of Former Firm
In Philadelphia Bar Association Professional Guidance Committee Inquiry 92-8, the Philadelphia Committee also considered the question of the former firm's ability to retain files of the clients in question after being discharged as counsel. Referencing the Philadelphia Bar Association Professional Guidance Committee Opinion 87-1, the Philadelphia Committee noted that Rule 1.16(d) requires an attorney, upon termination of the representation, to take steps to the extent reasonably practicable to protect the client's interests, including surrendering papers and property to which the client is entitled. Rule 1.16(d) also provides that "the lawyer may retain papers relating to the client to the extent permitted by other law." The Philadelphia Committee recognized the conflict between the lawyer's right to a retaining lien and the lawyer's ethical obligation to avoid prejudice to the client. Reaffirming its earlier Philadelphia Bar Association Professional Guidance Committee Opinion 87-1, the Philadelphia Committee concluded that a retaining lien should be asserted only as a matter of last resort and only once the lawyer had sought other reasonable means of collection of the unpaid fees. See, PBA Formal Op. 94-35: Ethical Considerations in Attorneys' Liens; see also, PBA Formal Op. 95-100: Ethical Considerations in Connection with Retainers Paid on Account of Legal Services.
The Philadelphia Committee has considered on several occasions the question of post-employment restrictions in employment agreements as a means of addressing the division of fees from clients who move with a departing attorney.
In Philadelphia Bar Association Professional Guidance Committee Opinion 87-24 (issued April 1988), the Philadelphia Committee responded to an inquiry whether a lawyer could be required, pursuant to an employment agreement, to pay to the former firm 50% of the fees earned over a one-year period after the lawyer's departure from clients of the firm who chose to retain the departing lawyer as their lawyer following the lawyer's departure. The Philadelphia Committee noted that Rule 5.6 prohibits restrictions on the right of a lawyer to practice law. While the employment agreement in question did not expressly prohibit the lawyer's right to practice, or to practice with clients of the firm after the termination of employment, the agreement did provide a liquidated damage clause which would require payment by the lawyer to his former firm. The Philadelphia Committee was of the view that the higher the liquidated damage cost, the more likely that a restriction on the right to practice existed because of the economic disincentive involved in the potential representation. However, such a determination would necessarily require an evaluation of the facts and circumstances of each particular case and the Philadelphia Committee did not make such a determination in the inquiry before it.
The Philadelphia Committee also noted that, under the circumstances presented, Rule 1.5(e) would be implicated, since there was a division of fees among lawyers to be considered. Rule 1.5(e) would require that the client be advised of the proposed fee sharing and not object to the participation of all the lawyers involved and that the total fee would not be illegal or clearly excessive.
In Philadelphia Bar Association Professional Guidance Committee Opinion 89-3, the Philadelphia Committee reviewed two alternate provisions proposed for inclusion in a law firm professional employment contract. The first version of the provision stated that a departing attorney would not represent a client of the law firm unless the client requested a transfer of the file and the attorney compensated the law firm for files the attorney was taking to the extent of the amount owed to the firm by the client for accounts receivable and unbilled time. This amount was to be calculated at the law firm's regular hourly rate as of the date of notice of termination. This method of valuation would apply to all files taken by the attorney, including contingency fee cases and estate matters.
In the event that such a provision were ethically precluded, an alternate version was proposed which differed from the first only in that the departing attorney could satisfy the amount payable to the law firm with a signed note. The attorney would remain personally liable for any balance due at the time the files were actually removed from the law firm.
The Philadelphia Committee concluded that the Pennsylvania Rules of Professional Conduct prohibit a law firm employment contract provision which holds an attorney personally liable upon termination of employment for amounts owed to the firm by clients for matters in which the client has elected to retain the departing attorney. The proposed employment contract provisions implicated at least four Rules of Professional Conduct. First, the Philadelphia Committee concluded that neither version of the proposed provision would be prohibited by Rule 1.5(e) governing division of fees so long as clients were advised of and consented to the fee arrangement and so long as the resulting fees were not clearly excessive.
Second, the Philadelphia Committee concluded that the provisions as written would contravene Rule 1.8, which prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation and from acquiring a proprietary interest in any cause of action that the lawyer is conducting for a client other than a contingency fee contract or a lien for the fees. The Philadelphia Committee noted that, whether by direct payment of the outstanding bill or by personally guaranteeing payment, the lawyer acquired a stake in the representation which may improperly influence the lawyer's judgment. This arrangement, the Philadelphia Committee noted, was especially problematic in the contingency and estate matters encompassed by the proposed clauses. The Philadelphia Committee noted, however, that Rule 1.8 would not prohibit an employment contract provision which guarantees payment to the employer of the client's outstanding bill when and if the attorney receives it from the client or, in a contingency case, when recovery is obtained.
Third, the Philadelphia Committee considered Rule 1.16(d) regarding termination of representation and the attorney's duty to take steps to the extent reasonably practicable to protect the client's interests. The contract clauses in question explicitly stated that the attorney was liable for any client balance due at the time the file leaves the firm. This provision, concluded the Philadelphia Committee, created a consequence of the client's discharge of the law firm by imposing conditions on successor counsel, i.e., the departing attorney. While the law firm clearly was entitled to be paid for past services rendered, it could not compel payment by any means which unduly prejudiced the client. The arrangement under the clauses proposed, which would impose personal financial liability upon successor counsel and could result in the potentially prejudicial retention of the client's files, would exacerbate rather than mitigate the consequences of the change in counsel and may cause a violation of Rule 1.16 if there were actual prejudice to the client's case.
Fourth, the Philadelphia Committee referenced Rule 5.6 regarding restrictions on the right to practice as "perhaps the most disconcerting aspect" of the proposed clauses. The Philadelphia Committee noted that while the provisions did not on their face directly restrict the departing attorney's right to practice law, they did restrict the attorney's right to represent selected clients. In addition, to the extent that the required personal liability of the attorney was to act as a disincentive to representing the client, the proposed clause also limited the client's ability to retain counsel of choice.
In reaching its conclusion, the Philadelphia Committee referenced Pennsylvania Bar Association Legal Ethics Committee Opinion 86-17, which reviewed an employment contract provision requiring a departing attorney to remit to a former law firm 20% of fees for services rendered by the attorney to previous clients of the firm. The Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee concluded that such a provision was a restriction on the right of the lawyer to practice law after the termination of the relationship because it, in effect, imposed a barrier to the creation of a lawyer/client relationship which was inconsistent with the concept of the practice of law as a profession and which at least indirectly interfered with the client's choice of counsel.
In Philadelphia Bar Association Professional Guidance Committee Opinion 90-10, the Philadelphia Committee was asked to review whether a firm could take action to enforce a liquidated damages provision of the firm shareholder agreement. After considering the agreement as a whole, including the liquidated damage provision, the Philadelphia Committee concluded that invocation of any of the remedies in the agreement would be inconsistent with Rule 5.6(a).
A provision in question stated that if an attorney had been terminated from or by the firm, and either continued, or within one year after termination, established an attorney/client relationship with an existing client of the firm, the attorney would be liable for liquidated damages. Such damages would be calculated as 80% of the preceding two years' billing to the client in question or, in the case of a departing attorney shareholder, 80% of the billings to the client for each year of stock ownership plus two additional years.
The Philadelphia Committee noted that the 80% liquidated damage clause carried with it a strong presumption that the implicit intent of the clause was to inhibit the firm's attorneys from practicing elsewhere. However, the Philadelphia Committee concluded that an 80% liquidated damage clause was not under every circumstance a restriction on the right to practice. However, in this case, the Philadelphia Committee determined that this particular liquidated damage provision, together with certain other restrictive provisions in the agreement, violated Rule 5.6(a). Most significantly, the Philadelphia Committee noted that the method of calculating the 80% figure resulted in a progressive disincentive to senior attorneys to practice elsewhere.
The Philadelphia Committee also noted that another provision of the agreement, which required a departing attorney to have no communication with a client of the firm with whom he or she had had a prior professional relationship except for announcing the departure and identifying the new place of practice, and subjecting the attorney to possible equitable relief for having further communication, clearly restricted the attorney's right to build a practice, which was inherent in the right to practice generally. In addition, this language directly interfered with the client's recognized right to choose his or her own attorney.
Applicable Case Law
In addition to the Rules of Professional Conduct and Committee Opinions, Pennsylvania case law is also instructive. The two leading decisions in Pennsylvania concerning liability for acts committed in connection with departures from law firms are Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A. 2d 1175 (Pa. 1978), app. dismissed, 442 U.S. 907 (1979) and Joseph D. Shein, P.C. v. Myers, 576 A.2d 985 (Pa. Super. 1990), alloc. denied, 617 A.2d 1274 (Pa. 1991).
In Adler, Barish, the Pennsylvania Supreme Court reversed a Superior Court Order dissolving an injunction against former salaried associates of a law firm and ordered the injunction reinstated. The injunction prohibited the attorneys from contacting the law firm's clients and informing them that the associates were forming a partnership and that the clients were free to terminate their relationship with the law firm and to be represented by the associates. The trial court had enjoined the associates from contacting and/or communicating with those persons who had active legal matters pending with the law firm. The Superior Court dissolved the injunction and dismissed the complaint and law firm appealed.
The basis for the trial court's injunction was that, while still working for Adler, Barish, certain associates decided to form their own law firm and took several steps to achieve their goal. They retained counsel to advise them concerning their business venture, sought and found office space and signed a lease. They also procured a line of credit and provided the bank with a list of 88 cases and their anticipated legal fees. After the announcement by one of the associates to the firm of the termination of his relationship, but while he was continuing to use their offices and thereafter, he initiated contacts by phone and in person with clients of the firm on open cases on which he had worked while a salaried employee. He advised the clients that he was leaving the firm and that they could choose to be represented by him, by the firm, or by any other firm or attorney. In addition, he mailed form letters to the clients which could be used to discharge the firm as counsel, name him as the new counsel and create a contingent fee agreement.
The Pennsylvania Supreme Court determined that the actions of the attorney frustrated, rather than advanced, the clients' informed and reliable decision-making process. The attorneys were actively attempting to induce the clients to change law firms in the middle of their active cases and their concern for their line of credit and the success of their new law firm gave them an immediate, personally created financial interest in the clients' decisions. Thus, the Pennsylvania Supreme Court concluded that the attorneys had engaged in intentional interference with the relationships between the firm and its clients. The firm was entitled to the injunctive relief which had originally been entered by the trial court.
Further, in the Shein case, attorneys departing the firm to form their own firm were found to have tortiously interfered with their former firm's contracts with the clients by surreptitiously removing files from the firm's offices, making scurrilous statements about the firm and sending misleading letters to clients of the firm.
As in all decisions about what an attorney should or should not do, the ethical, professional and legal course for a departing lawyer is to be forthright and honest. The firm should be informed about a lawyer's plan to leave and the departing lawyer should make no attempt to garner the firm's clients until after notifying the firm of his or her plans to depart. After informing the firm, the extent of the departing lawyer's efforts to obtain the firm's clients should be limited as discussed above. Such an approach maintains the dignity of the profession, ensures that the clients are provided an informed opportunity to choose counsel and relieves the departing lawyer of any concern that he or she is breaching any duties to the former firm.