The attorney-client relationship is a sacred connection in the eyes of the Rules of Professional Conduct. This relationship may survive the dissolution of a law firm and the departure of a lawyer from the firm with whom the client began a relationship. While the attorney-client relationship is sacrosanct, the privilege enabling that relationship to survive the severing of a lawyer’s connection with a firm causes difficulties unforeseen by the Rules of Professional Conduct.
Courts generally protect employment agreements that prohibit employees from soliciting the clients of their former employers. These “non-solicitation” agreements are intended to protect the investment of the employer in gathering and retaining clients that form the basis of their business. Businesses expend vast resources in the form of marketing, paying fees for referral services, providing free consultations to prospective clients, and the general time and effort of forming a relationship with a prospective client. The business owner, or employed representatives, may spend a good portion of their time and resources building these relationships in the hope that these efforts will result in a mutually beneficial business relationship for years in the future. Many businesses are afforded protection for the efforts expended in obtaining clients through non-solicitation agreements.
The business of a law firm is unique in that any non-solicitation agreements will likely be unenforceable due to the client’s unfettered right to decide who will continue representation upon disruption of a firm and lawyer relationship. The decision of who to employ as their attorney; the current firm, the departing lawyer, or a third party altogether, rests firmly with the client. As such, the firm owner, who built the client relationship and client base, has no recourse in the event of a departing attorney employee. Both lawyer parties are charged with providing timely notice to the client and working together to ensure the client is aware of their choice of representation. Ideally, this means jointly crafting a letter informing the client of the impending departure and offering the client a choice of attorney. A circumstance that may prove difficult when the departure is an acrimonious one. However, acrimonious, both lawyer parties have an obligation and duty to inform the client and maintain as much professionalism as can be mustered under circumstances in which both risk losing a client relationship.
This duty calls upon the attorneys to act in good faith, set aside their personal beliefs about the relationship with the client and their potential economic losses. As such, the most important criteria for an employer in a field exempt from the protections of non-solicitation agreements is trust and continuing communications about the intentions of all parties to ensure a smooth transition when and if it occurs.