Hello, folks. My name is David Lefkowitz. I am in Athens, Georgia. Also have an office in Atlanta, Georgia. My practice focuses on legal ethics and legal malpractice, and I'm also an adjunct professor at University of Georgia Law School. And today, I'm going to be talking about ethics of leaving a law firm. And that applies to the ethical and legal obligations of the lawyer who's leaving the firm, as well as the law firm from where the lawyer is leaving. We'll go through a series of slides and talk about the issues. All right. First hypothetical situation. An associate at a firm has decided to leave the firm and start his own practice. He wants to take his existing clients with him. Consider the following. May the lawyer call his clients, tell them he's leaving, and ask the clients to hire his new firm. It's a bit of a trick question. The answer in most states and under the ABA model rules. Is. Yes, but only after the lawyer has informed the firm that he or she is leaving. So the lawyer can't unilaterally reach out to clients and try to get the clients to commit to leaving with the lawyer and then tell the law firm that would be breaching the rules of professional conduct and the fiduciary duties that the lawyer owes the firm. The next question is. Who can the lawyer contact? Now, if you're going to go ahead and unilaterally contact clients of the firm that you're leaving? Then you can only contact clients that you actually have had a relationship with. So you can't just call random clients on a firm client list and say, for instance, Hey, I'm leaving. I know you've been charging 600. You've been charged $600 an hour for my time. I'm going to start my own firm. I'll give you the same quality of work, and I'll only charge you $300 an hour that you can't do. You can only reach out to folks that you've been working with genuine, legitimate work. And the reason is that those clients actually need to know where you're going and have a right to know where you're going. So there's no violation in terms of reaching once you've notified the firm, reaching out to clients that you've been working with. Because the rules take the position that the client's interests are most important and the client has a right to know where you're going. So the firm can't stop you from communicating with those clients. Must the law must the lawyer let the firm handle the communication with the client. If you're old or somewhat old like I am, then you may think that the rule is yes, because the rules, the rules of most states and the ABA model rules used to be that if the firm wanted to have a joint communication with the client, you had to go along with that. The ABA model rules no longer say that. Most states no longer say that. We'll talk about a slide in a little while where Florida does require you to try to get a joint communication with the law firm. But if you can't and only if you can't, are you then allowed to reach out to the client on your own. But the general rule is that once you've notified the firm you're leaving, you can reach out to the client directly and let them know you're leaving and give them the option of coming with you. May the lawyer or the firm insist that the communication be made jointly. Not generally really the same. That's the same issue as we were just talking about. That used to be the rule. It is no longer the rule unless you have a written agreement with the firm that's binding and even then it's not going to be binding if the client has to know. So, for instance, if you're leaving right away and the client's deposition is coming up or there's an important hearing, the client has a right to know under rule 1.4, and the firm can't stop you if there's nothing pressing. And you've previously agreed that this is how you're going to communicate jointly, then yes, you must fulfill your duty to the firm and honor that agreement. And then if you're in a state like Florida that has specific rules, you have to follow those rules. Now, one thing I'll point out, just remember the ABA model rules are not binding on you. You learn them in law school, you're tested on them when you take the bar. And then as I like to joke, the ABA rules are anything but authoritative. They're model rules. Many states use the model rules as a guidepost, and some states 90% of the rules are the same. Some states 60% of the rules are the same as the ABA model rules. But just remember, you need to know what your state's rules are once you start practicing law. Are there any restrictions a firm can place on its employees, partners or associates to protect his business from an associate who wants to leave the firm and take as many clients as possible? So, yes, you can have employment agreements for associates, partnership agreements for partners. You can do everything in your power to keep that from happening. That's obviously a significant interest of a firm is to a retain associates that are valuable, but b retain clients. But just always remember, a firm doesn't own the clients. The client always has the right to go with the lawyer that the client wants to go with. Lots of lawyers will talk about other lawyers stealing clients. Well, you can't steal something that isn't yours. So technically speaking, nobody's stealing a client from you because the client has the right to go where they want. But. But you can create rules that are binding 90% of the time. So that. A lawyer is leaving. The firm has to have a joint communication and can't just reach out and poach clients that are valuable. Just remember that if a if the lawyer is leaving and there's an urgent situation that the client has to know about, then you, as the law firm, cannot stop the lawyer from reaching out to the client. What are the risks to the associate is leaving. Always remember whether you're the firm trying to keep clients from leaving or the associate trying to take the clients that you do owe fiduciary duties or fiduciary duties are owed to the law firm by the by the employee. It's a master servant relationship, and the servant does owe fiduciary duties to the master who's been employing and paying the servant. In 2019, the ABA Formal Advisory Opinion Board issued an advisory opinion. Its opinion for 89. I'm going to go through it. It's helpful because it relies on ABA model rules that are virtually identical to the rules in all the states. And again, there's a couple of outliers. Florida's one, Virginia is another. But generally speaking, the rules that are in play here under the model rules are identical to the rules that the states have adopted. So in that context, an ABA formal advisory opinion is going to be important because your state Supreme Court, when determining whether or not you violated a rule, will look at those as persuasive authority. Most states say that if there's a formal advisory opinion issued about a rule that's identical under the model rules and the state rule that it is persuasive authority, not necessarily binding, but persuasive. So it's a good place to start. All right. So I'm going to walk through a summary of Rule 489. It'll give you virtually everything that you need to know, whether you're the departing lawyer or you are a managing partner or another partner at a law firm dealing with a situation where somebody is leaving, whether it's an associate or a partner. All right. So first and this is self-evident, but lawyers who leave their firms and the firms and the departing firms have ethical obligations towards the clients of the departing lawyers. Those ethical obligations include the duty of communication under Rule 1.4 and the responsibility to enact reasonable notification periods for lawyers who are leaving their firms. Okay. So you've got to notify the the the clients and the notify that last clause. The notification periods for lawyers. We'll talk about that in more detail in a little while. But that deals with situations where you can't make a lawyer stay with your firm for 60 days or 90 days or 120 days like law firms used to do. That's prohibited. You can't say the effective date of your departure shall be 120 days after you notify us. If a lawyer wants to leave, a lawyer can leave. And if a client wants to go, the client the client can. Uh, law firms can't restrict departing lawyers access to files or support staff to the extent necessary to provide diligent representation to the clients. So if you're a managing partner at a firm and somebody's getting ready to leave your firm and take some valuable clients with you, your initial instinct may be to make it as difficult as possible for the departing lawyer. The reason you can't do that, however, is that the folks who come up with the rules and enforce the rules in your various states, they care a little bit about your law firm and they care a little bit about your. Law firms future revenue, but their primary focus is on the clients rights. So the way I like to analyze it is like this. Your state bar. Georgia has tens of thousands of lawyers wherever you are. There may be more or less lawyers. The state bar itself is essentially a large trade union for you. But the Office of General Counsel, the administrative entity within the state bar that is tasked with enforcing the rules. They are not. They are not looking at at it as a trade union. They're looking at it more as a consumer protection organization for clients. So if anything comes down to protecting a lawyer's rights or protecting a client's rights, it's generally going to come down in favor of the client. Now, that pendulum, the pendulum that deals with more rights for the client, more rights for the for the lawyers has been moving slightly over the years towards the lawyers or maybe I shouldn't say towards the lawyers, but away from the clients. The perfect example is conflicts of interest. You have these nationwide firms and lawyers in Atlanta or New York get very upset if they can't handle a matter that may be adverse to claim that a lawyer in California is handling. So there have been slight changes over the years, allowing representation in certain contexts where you previously would have thought, no, there's no way that a court would allow that to happen. That is a conflict of interest. Not so much anymore. I mentioned earlier, rule 1.4. That is where you as a lawyer, your obligation arises to inform your clients of your pending move. Okay, So if you're a lawyer who's leaving and the firm says you can't speak with your client and you don't you haven't signed an agreement on that, or the firm gets upset at you for notifying a client after you've notified the firm of your departure, just say, Hey, I've got an ethical obligation under Rule 1.4 to let my clients know what's going on. And that should take some of the heat off of you. The departing lawyer again. We're continuing. Continuing with formal advisory opinion 49 and that's 49 of the ABA. Okay. Not any particular state. The departing lawyer and the firm may communicate that information unilaterally, meaning that one side or the other can communicate the lawyer's departure on their own. But the firm and the departing lawyer should work toward a joint communication to all clients with whom the departing lawyer has had significant contact. I should have highlighted and want to highlight for you the word should that is not binding. Anytime you see the word should in a comment or in a rule or in a formal advisory opinion. That is what they're saying you should do. That's the best practice. That's the ultimate and ethics and professionalism. But you're not required to do that. Okay? If you're in a state where there's a shall or a must, then very well that's binding on you. But it should is not enforceable on you. All right. The joint communication gives the client time to consider whether to stay with the departing lawyer or remain with the firm or choose another another attorney altogether. All right. So the firm, obviously, the firm's interest isn't keeping the client and say obviously there's some times that the firm is fine with the client leaving with the associate or the partner is leaving. But if it's a very valuable client, then the firm's interest is going to be keeping the client because that keeps the income. So the firm and the lawyer presumably both want to keep the client. That's the context where this advisory opinion applies. All right. Here we have some exceptions. A few states, such as Florida and Florida and Virginia have specific rules on what lawyers can do. Regarding informing and soliciting clients. So here's a Florida rule for 5.8, for example. Okay. Procedures for lawyers leaving firms and dissolution of law firms. Contact with clients. Lawyers Leaving law firms. Absent a specific agreement. Otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients. Unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful. All right. This is. In conflict with or different with the ABA model rules and the rules in many states, including Georgia. Where am where once you have notified the firm, you can do whatever you want in terms of reaching out to clients. But in Florida, the rule is different. That communication with the client has to be a joint communication between the departing lawyer and the firm. Unless the departing lawyer has sought to reach a joint communication with an authorized member of the firm and has been unsuccessful. All right. So as with everything, make sure you check your local listings, check your rules, because your state's rules are the ones that you're obligated to abide by. All right. So as I just said, under the model rules, the party lawyers need not wait to inform clients of the fact that of their impending departure, provided that the firm is informed contemporaneously. So you can't notify clients until you've notified the firm. So can you do it at precisely the same time? Yes. Is it better to wait and first notify the firm and then immediately thereafter notify the client? Yes. And typically that's how it would happen. I mean, you're not going to send an email to the firm and an email to the client simultaneously. There'd be some short, however short it is some short period of time that elapses between when you notify the firm and when you notify the client. If you reach out to the client first, then you're violating the ethical rules in virtually every state and violating the fiduciary duties that you owe to your firm in virtually every state. And the only defense to that is if there's literally something critical that the client needs to know right away, such that a court or a judge or the state bar Office of General Counsel would really buy your claim that you didn't have time to notify the firm first because it was such a pressing need and importance that you notify the client first. That's going to be almost. Virtually unbelievable in virtually every situation. Um, another, another important tidbit from 489 is that the lawyer and the firm or lawyers at the firm where the clients where the lawyer is leaving cannot just on their own, unilaterally divvy up clients. Okay. Law firms and lawyers can't divide up clients when the law firm dissolves or a lawyer transitions to another firm. So that does happen technically. Mean, if I go to if I'm with a big firm and I go to the partner and say, hey, I'm thinking about taking client A, B and C with me and you can keep clients X, Y and Z. That's actually a relatively normal situation. But the opinion says you can't do that. And what the opinion is really saying is you can't do that and then tell the clients this is how it's going to be. But if you're the departing lawyer and you reach out to clients A, B and C and say, I'd love you to go, leave with me, and you call clients X, Y and Z and say, Hey, I'm leaving and my firm will be happy to continue representing you as I go off to a new firm. That's fine as long as ultimately the client has the right to decide are they going to stay with the firm? Are they going to go with you if you want them, or are they going to go to a third firm, another firm that's not involved with their representation? And so the firm cannot just go ahead and unilaterally assign new lawyers to the case. Okay. That's naturally flows from the slides that we went through before is you can't just start assigning new lawyers to the case absent the client's direction. Okay. The only exception is if there's an exigent circumstance. So if the lawyer is leaving the firm lawyer had primary contact with the client. Lawyer doesn't plan to take the client with him or her. And there's a hearing coming up. Yes. Then the firm from which the lawyer is leaving can assign new lawyers to handle the hearing or the deposition or whatever is coming up in exigent and exigent fashion. Um. There are some burdens placed on the law firm that the law firm probably isn't going to want to deal with when the lawyer is leaving and taking the client with them. But rule 5.1, under the rules of professional conduct, the model rules and most state's rules say that law firm management does have the obligation to establish reasonable procedures and policies to assure the ethical transition of client matters when lawyers elect to change firms. What that means is the law firm and the departing lawyer must coordinate to ensure that all electronic and paper records of the client are up to date and organized for transfer to the new firm or new counsel pursuant to the client's choice. So there is work to be done, administrative work, some legal work by the firm where the lawyer is leaving to make sure that the client's rights and interests are protected. And really, with regard to everything we're talking about today, a lawyer leaving a firm, a firm dealing with a lawyer, leaving a new firm, bringing on a lawyer. All the emphasis is on what's best for the client. And if you practice law that way, whether it's dealing with switching law firms or any other aspect of practicing law, if your sole perspective is what's best for the client, then you're going to keep yourself out of trouble. All right. So under Rule 49, there could be no unreasonable notice provisions. This is what I was talking about just a little while ago, dealing with law firms, not putting a lengthy period of time where the lawyers have to stay with the firm so the lawyer can announce he's leaving on January 15th and have the firm require that he stay with the firm until June 16th. That used to be relatively common, actually, but under rule 5.6, that's no longer allowed. And here we are, the opinion Cites model rule 5.6, which provides that lawyers not make a partnership or employment agreement that restricts the lawyer's ability to practice after the lawyer leaves the firm. And the opinion provides that law firms notification requirements on departing lawyers cannot be fixed or rigidly applied without regard to client direction or use to coerce or punish a lawyer for electing to leave the firm. Nor may they serve to unreasonably delay the diligent representation of a client. So whether there's. Legitimate reasons for trying to keep a lawyer at the firm for a while, or just illegitimate reasons like punishing the lawyer or punishing the departing client, that's just not allowed any longer. And the reason is that the notification requirements can't negatively affect or impact a client's choice of counsel. Okay. Pretty simple. All right. Another thing that law firms where the lawyers leaving don't like is that law firms cannot deny a departing lawyer access to adequate firm resources during the transition period. This means that the firm can't force the departing lawyer to work remotely or at home. Although these days lawyers want to. This is this opinion is from 2019, before Covid and before the. Move towards working from home or remote work. Furthermore, to the departing lawyer must have the ability to receive necessary assistance from assistance from support staff. So just imagine you're a managing partner at a big law firm and somebody's leaving and taking some of the some of the really big clients with them. And what you need to do is still continue to provide firm resources and assistance from firm staff. Firm support staff to the lawyer who's leaving so that these clients that are leaving are still well cared for. It's I can see why someone or some firm might find that unpalatable. But if you just approach it from the perspective of what's best for the client, then it's understandable and it makes sense. Our law firms also cannot prohibit or restrict access to voicemail, email files, electric or electronic court filings, etcetera, if they're necessary for the departing lawyer to represent clients competently and diligently during the notice period. So I hope that nobody would be so petty as to tell a lawyer you don't have any access to court filings or the files on our electronic system just because you're leaving. But. Sometimes disputes arise. Sometimes lawyers leave firms and start taking things. To taking electronic files, literally taking property of the firm. And the firm says to heck with that and cuts the lawyer off. Well, I totally get the motivation for that. But if it's going to harm the client, then somebody at the law firm is going to get a bar complaint filed against them or a lawsuit or both and probably lose. So be careful about that. All right. This is language that I use in the hypothetical on some seminars that I speak at. Is this language enforceable in a partnership agreement? Any partner who wishes to retire from the private practice of law or withdraw from the partnership shall give at least 60 days notice. Sorry, 60 days prior written notice to the management committee. The management committee shall have the right to determine the effective date of the withdrawal or retirement of the partner, which date shall not be later than 90 days after such partner has given notice of withdrawal or retirement to the management committee. There were multiple law firms in Georgia and throughout the country that used the same language, and that's because for years it was enforced in court. And you know how lawyers are. If something is in a contract or an insurance policy and it withstands scrutiny in a case, in a court of law somewhere, then other law firms copy it, which makes sense. So this language was in lots and lots of partnership agreements when I first started practicing law, and now it's not in any or if it is in any, The firm is setting themselves up for problems because this is precisely the type of restriction that is now prohibited under Rule 5.6. And here it is. A lawyer shall not participate in offering or making a partnership. Shareholders. Operating employment or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship. Except. Except. Dealing with benefits upon retirement. So that's the only context in which it's okay, but not when it may affect the rights of a client. Then it is not okay. I'm gonna skip this. All right. Another hypo dealing with the scenario where a lawyer leaves one firm and goes to another firm. The plaintiff's firm is growing and you decide to hire a defense lawyer. Donald. You've litigated against for a few years. He's presently opposing counsel in one of your largest personal injury cases. All right. So this scenario happens frequently where you're a lawyer at a firm and you've litigate against somebody for a while and you're like, whoa, he or she is pretty impressive. I wouldn't mind having that person work at our firm. And you go ahead and eventually you hire that lawyer. So in this specific context, if Donald joins your firm, so he's defending a case, he goes switches to your side. If Donald joins your firm, can he work on the case he'd been defending if the former client does not agree? And the answer to that question. Is. No. If the client doesn't agree, then he cannot continue working on the case. Moving from the defense side to the plaintiff side, I think that should be self-evident to everybody. But he cannot do so and can't really fathom a situation where the defense would agree for Donald to continue working on the case as plaintiff's counsel after he'd been defending it. So the answer to this is no. Next question. If Donald joins your firm, can you continue to handle the case as counsel for the plaintiff if the opposing side objects? So this is a situation where the rules are different in some states under the ABA model rules and the rules in most states. If Donald switches from the defense side to the plaintiff side, the plaintiff's firm can continue to handle the case so long as Donald is effectively screened. Okay. It doesn't matter whether the defense doesn't like it or not. If Donald is effectively screened, he can prove it. And we'll talk about that in a little while. Then the law firm that was handling the case can continue to do so in Georgia. The answer is different. In Georgia, we do not allow screening. So you need to make sure that you know the rules in your state, because we had a situation in Georgia where a very prominent plaintiff's lawyer that got involved in mass tort cases hired a very, very competent defense counsel that they'd be going up with. The defense counsel wanted to do plaintiff's work. The defense counsel accepted an offer to go to the plaintiff's firm, and this plaintiff's firm was disqualified from handling thousands of cases, mass tort cases arising out of a defective product because the lawyer in this case, The Donald. Had switched sides to the plaintiff's firm and disqualified the firm. Okay. So in Georgia, if Donald switches to the plaintiff side, the firm is disqualified unless the defense agrees. Now, there are situations where a defense lawyer has a good a good relationship with the clients. Maybe they represent hospitals, maybe they represent insurance carrier or take cases on behalf of an insurance carriers, insureds, whatever the case may be. Plaintiff's lawyer speaks to the powers that be at that client and says, Hey, I've enjoyed working with you. I've always wanted to do plaintiff's work. Would you be okay with me joining this firm? I won't work on any cases against you. I promise I'll be screened and I won't have any access to any files or any cases against you. If the client agrees, then that's fine. You can enter into some type of written agreement. Donald is screened and the firm can continue handling cases. The risk is if Donald if the opposing side, the former client, doesn't agree, then the firm Donald and the firm in in Georgia and other states will be disqualified from handling the case any further or handling cases against that client. So be very careful because screening is not allowed in every state. Would the answer be different if Donald was a paralegal in Georgia? There was a case several years ago in front of the Georgia Supreme Court, say several years ago. It's actually at the bottom of the screen, 2014. Remember when it was brand new? In that case, what the Georgia Supreme Court did is said, eh, we're still not going to allow screening. We're not willing to change our rule on that. Lawyers cannot be screened over the objection of their former client. If a lawyer, if there's one lawyer at the firm that can't handle a case, then no lawyer at the firm can handle the case. But what the court did is carve out an exception for paralegals. So if a paralegal goes from the defense side to the plaintiff's side, or vice versa, that lawyer can continue handling the case as long as the paralegal is effectively screened. And what the court said is, well, paralegals are a lot more likely to switch law firms and we don't want to unnecessarily restrict their their movement. And also lawyers are obligated to supervise paralegals and lawyers are obligated to follow the rules of professional conduct. And lawyers know the rules and therefore can help enforce them. And they will make sure that paralegals are effectively screened. So we're are going to allow screening of paralegals without the law firm being disqualified. Um. You can say, okay, that's a great decision, or you can question it to me if you're going to allow paralegals to be screened under the supervision of a lawyer, then why not just allow lawyers to be screened since they're supposed to supervise each other So. And know the rules? Obviously so. Whatever your opinion on the matter, is it really I always say don't really so much care what the rule is. I just want to know what it is so I can abide by it and make sure that the people that I advise on ethical rules abide by it. So in most states, screening is fine. You just need to effectively screen. In some states like Georgia, screening is not allowed and you will disqualify yourself from cases if you bring somebody from the other side onto your side. So just be very careful. What if another lawyer from Donald's firm joined your firm? Would the answer be different? So in Georgia and in other states that don't allow screening, the answer is yes. The answer is yes. If the lawyer who leaves the firm he switches firms, has no knowledge of the facts whatsoever, then that would not be a disqualifying event for the firm that took the lawyer in. All right. So we're talking about conflicts of interest. We're talking that's really one of the real major issues with switching law firms, because you could be a firm bringing in a team of lawyers from another law firm. And then you realize, oh, my gosh, oh, my gosh, the lawyer has a conflict of interest. Now we have a conflict of interest. And yeah, that lawyer is bringing in some clients, but we are now disqualified from representing other clients. So it's a big issue. But in order to really understand the issue, you have to understand what is a conflict of interest. And could spend an hour talking about that. Or I could teach you probably teach a whole law school class on the what? What is a conflict of interest and what isn't. But let's go through it really quickly just so that in the context of changing law firms, whether you're a lawyer or a or a firm bringing in a new lawyer, you understand the context. All right. Conflicts vary, but they embrace all situations in which an attorney's loyalty to or efforts on behalf of a client are threatened by his or her own interests or the interests of a third party. We'll talk about that when the representation is rendered less effective. Where action is potentially prejudicial, meaning prejudicial to a client. Excuse me. Or when the attorney assumes a position potentially adverse or antagonistic to his or her client. Those are all conflicts of interest. Conflict of interest derived from the old adage that an attorney cannot serve two masters. An attorney's duty of loyalty prohibits him or her from putting another's interests above that of the client and should have added in there. Equally important, an attorney's duty of loyalty prohibits him or her from putting his own interests above that of a client. The rules of professional conduct are intended to reflect and safeguard this principle. All right. The several rules that deal with conflicts of interest. Okay. 1.7, 1.8 and 1.9. 1.10. To a lesser extent, they go out of order here. Rule 1.8, just generally speaking, deals with prohibited transactions with with a client. And I'm not going to talk about that very much because it doesn't deal with lawyers leaving law firms. But just make sure you read over 1.8. Some people, some lawyers know they've been practicing 25 or 30 years and they have not looked at the rules, particularly the conflict of interest rules, since they were studying for the bar exam. Well, that's a big problem because, number one, the bar exam tested you on the ABA model rules, not your state's rules. And your state's rules may be different. And number two, even if you have looked at your state's rules, but it's been a while, they could change. Most states modify their rules somewhat regularly, either to be consistent with other states or to adopt changes that the ABA has made in their rules. So keep up with the rules. But one point is, is basically a list of things that lawyers can't do. Okay? You can't enter into a business transaction with a client. You can't knowingly acquire ownership interests or possessory interests of security or any other interest adverse to the client unless you get informed consent. Now, I can tell you what informed consent, except I'm just going to tell you that you need to tell the client the good, the bad and the ugly of the transaction. You need to let the client know what the risks are and what the benefits are. And as a friend of mine who works at the State Bar of Georgia in the Office of General Counsel, she always jokes if a conflict waiver was perfect. A client would never sign it because a conflict waiver would have to go into so much detail about the risks of waiving the conflict that a client would say, I don't really know if I want to do that. But the bottom line is your conflict waiver needs to be strong. And if you ever want a client to enter into a conflict waiver, make sure you look at Rule 1.8 and the comments so that you dot your I's and cross your T's. All right. Rule 1.7 is the rule that that really deals with the conflicts of interest that can arise when lawyers change law firms. All right. Except as provided in paragraph B, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Concurrent conflict of interest exists If the representation of one client will be directly adverse to another client, or there's a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client or a former client or a third person, or by a personal interest of the lawyer. So you remember before I'd only written the three. Another client, a former client or a third person. Here, I've added and highlighted the personal interests of the lawyer, which is critically important. Okay. If your interests are conflicting with the interests of the client and it would adversely affect the representation and you can't represent the client or if you want to, you need to get a conflict waiver where you explain to the client exactly how your interests conflict and how that could hurt the client. Examples of potential conflicts. Representation in more than one client and a matter in which the interests of the clients actually conflict. That would be the situation where you are representing the driver of a car and a passenger of a car who involved in a crash. And then you find out shortly before the deposition of the driver, for instance, that he was smoking weed right before the crash. Well, suddenly the driver's interests and the passenger's interests, both of whom are your client conflict because the client, the passenger, may have a claim against the driver after all, and the driver doesn't want you to tell the client and you can't tell the passenger what the driver told you. So then you have essentially an irreconcilable conflict and have to withdraw from both clients. So it's risky. Second, where one's client's loss translates to another potential clients gain or another client's potential gain. This is a scenario of the zero sum game. Okay? If there's a limited limited amount of money available under a policy and you want to represent two clients where the claim is both cumulatively are worth more than the policy. That's a conflict. You can do it. But you've got to get the clients informed consent. And then when the case is settling, you need to tell each client. What the other clients getting, which of course can cause conflict. Literal conflict, not conflict of interest. Conflict. Because again, the zero sum game, the client is getting less, wants more. The client is getting more, wants even more than they're getting. So definitely a potential conflict of interest. And third. Any action where the attorney's duty of loyalty to a client is potentially divided. And that could be any scenario. I won't even get into examples, but if you're if your duty of loyalty. Cannot be given to this client completely. Then you got a conflict that you need to let. If you want to continue the representation, you need to let the client know and get informed consent to continue it. What are the Now let's talk about switching law firms and what can be disclosed. Okay. What can be disclosed when you're switching firms? There's two competing concerns. One, the confidentiality of information you have pertaining to the client. Okay. So you're representing a client. Let's say you're being recruited to join another firm and the other firm wants to know information about the client because the other firm wants to avoid conflicts of interest if they bring you on or bring this client on. Is it going to create a conflict of interest with other clients at that firm? So that's a competing concern. On the one hand, maintaining confidentiality, on the other hand, not having a conflict. How do you resolve that? Well. The rules. The rules and the rules in virtually all states do allow for some communication of information, including confidential information, to make sure that the firm that's taking a lawyer on. Doesn't. Create a conflict of interest situation. So you need to read what paragraph? I'm sorry, Rule 1.6, but comment 13 deals with this and have some more slides on this. But paragraphs B seven of rule 1.6 recognizes that lawyers in different firms may need to disclose limited information to each other to detect and resolve conflicts of interest, such as when a lawyer is considering an association with another firm. Two or more firms are considering a merger or a lawyer is considering the purchase of a law. Product law practice Continuing. Under these circumstances, lawyers and law firms are permitted to disclose limited information, but only one substantive discussions regarding the new relationship have occurred. I'm not going to continue reading the whole screen, and nobody likes that. But the bottom line is some limited information can be shared. We'll talk about that in a sec. But if it's confidential and would normally be protected, then the only context in which you can disclose it is after substantive discussions regarding the relationship have occurred. All right. What are the competing concerns with regards to sharing this information? One, the client needs to be ensured that the loyalty to the client is not compromised. The client needs to still be permitted. Reasonable choice of counsel. But we don't want to unreasonably hamper lawyer mobility. And if lawyers could never tell the firm that they might go to what clients she represents, what the matters pertain to, who the who the other side is. If it's litigation, then lawyers would never be able to switch firms. So there has to be some compromise. And here's what the compromise is. A lawyer is permitted to reveal information relating to the representation of a client to detect and resolve conflicts of interest arising from the lawyer's change of employment. Or for changes in the composition of the ownership of a firm. But but only if the revealed information would not compromise the attorney client privilege or otherwise prejudice. Client and reasonable efforts must be made to prevent the inadvertent or unauthorized disclosure of or authors unauthorized access to the information. So you still have to be careful. Limited information is permitted to be disclosed without client consent to check conflicts when considering new a new association. So the identity of the persons and the entities involved in the matter can be disclosed. A brief summary of the general issues involved can be disclosed, and information about whether the matter has terminated can be disclosed. But if you disclose those those pieces of information, they can only be disclosed to the extent that reasonably the extent reasonably necessary to detect and resolve conflicts of interest that might arise from the possible new relationship. Again, balancing. A balancing act. All right. What can't be disclosed? First information subject to the attorney client privilege. Okay. You cannot you don't have a right to waive attorney client privilege to speak with lawyers at the firm that you want to join. Uh, in order to. Ensure there's no conflicts. Second, information that would otherwise prejudice the client. So there's a few examples here of information you can't disclose to the firm that you want to join because it's prejudicial. So, for instance, the fact that a corporate client is seeking advice on a corporate takeover that's not been publicly announced, can't disclose that, that a person has consulted a lawyer about the possibility of divorce before the person's intentions are known to the person's spouse. You cannot disclose that it's too confidential. It would be too damaging. Another example is that a person's consulted a lawyer about a criminal investigation that is not led yet to a public charge. All right. That's not an exclusive list. It's just some examples of information that cannot be disclosed, even under the exception to rule 1.6 confidentiality. And as I mentioned earlier from the prior slide, information can be disclosed only after substantive discussions regarding the new relationship have occurred. All right. Here's rule 1.6. I won't go through it. I've already because the previous slides deal with it. But here's the language that allows you to disclose some confidential information. Okay. So 1.6 A and then there's language in 1.6, B seven. Okay. It's on the screen and you can find it yourself. All right. Rule 1.9 deals with former clients. I frequently talk to my students and to folks I'm talking to at classes about the importance of ending or terminating an attorney client relationship. When the when the representation ends, a lot of folks just close their file and try to stay on good terms with the client and think, well, maybe they'll hire me again. I want you to make sure that when attorney client relationship ends, that you send a disengagement letter. It can be something as simple as thank you very much for allowing me to represent you in this matter. It's been an honor to represent you and get to know you. This will confirm that the legal work is completed and I'm going to close my file. Why is that important? It's critically important because your restrictions under Rule 1.9 are significantly different than your restrictions, your conflict of interest restrictions under Rule 1.7. And the difference is that 1.7 deals with current clients. Rule one, point nine deals with former clients. Okay. If you have not affirmatively informed a client that they are now a former client. Then if you want to sue them for something, you know they're going to file a motion to disqualify and say, I thought you were still my lawyer. You never said you weren't my lawyer. Well, you can't sue. A current client, but you can sue a former client as long as the matters aren't the same or substantially related. So. Make sure that you turn a former client into a former client by letting them know and then rule 1.9 applies instead of rule 1.7, and it's a lot less restrictive. Okay. A lawyer who's formerly represented a client in a matter formally meaning no longer shall not thereafter represent another person in the same or substantially related matter. Okay. But you can represent another person in an unrelated matter. That's just fine. A lawyer shall not knowingly representative. This is be a lawyer shall not knowingly, knowingly represent a person in the same or substantially related matter in which the firm with which the lawyer formerly was associated had previously represented a client. So it's very, very critical. And I have signed affidavits and testified as an expert witness about whether a matter was the same or substantially related because a law firm previously had represented a client A and later wanted to represent somebody else in a claim against client A. Well, you can do that if they're a former client and it's not the same or substantially related matter. And you wouldn't be using confidential information learned during the prior representation to bring a claim against the former client. But you could never do that with a current client. So make sure you do what you need to do to turn that client into a former client. Okay. Um. Rule 1.10 is the rule that we were talking about with screening. And this is this is important only because I want you to be sure to remember that while the ABA model rules allow screening. And many states, I would go so far as to say most states allow screening. Some states, including Georgia, do not. Okay. And if you think that you can sue. A client or a former client or even a current client on an unrelated matter. Just remember that in some states, if one lawyer is disqualified from the representation, every lawyer at the firm is disqualified from the representation. And you need to pay close attention and take particular note of that depending on where you are. All right. What is informed consent? All right. Let's say you recognize that there's a conflict of interest, but you think that the client or the former clients. Will allow you to handle the matter. So you say to that former client, Hey. Will you please allow this conflict waiver and allow me to handle this matter? And the client says, Yeah, sure, why not? You're a nice guy. You wouldn't do anything to harm me. Well, you need to get informed consent and you need to make sure the informed consent that would withstand the scrutiny of a judge, a jury or somebody at your state bar. All right. So informed written consent means the client or former client's written agreement to the representation following written disclosure of all actual and reasonable foreseeable adverse consequences to the conflict. Concerning a potential conflict, an attorney must disclose all facts and circumstances which are necessary to enable the parties to make a fully informed decision regarding the subject matter of the representation. Potential conflicts. And that's an and not an or. The possibility or desirability of seeking independent legal advice. Failing to provide adequate disclosure subjects the attorney to civil liability to the client, potential charges of unethical and unprofessional conduct and may subject the transaction to attack as having been procured through misrepresentation. It's critically important that you present your client with the good, the bad, the risks rewards of waiving a conflict because everything is going to be great and wonderful while you're engaged in the representation. But if something goes wrong, you know that client or former client is going to come back and say, Wait a minute, you didn't tell me this could happen. And the rule requires that you tell them everything that might go wrong. And if you don't, it's going to be on you. It's just simply going to be on you. There's no there's no way around it because certainly a jury in this context, unless the client is extraordinarily sophisticated, the jury is going to say, well. The client was relying on the lawyer to tell them what the risks were and the lawyer knew what the risks were. And the lawyers required under the rules to disclose the risks, and the lawyer didn't. And the lawyer may say, well, didn't know. It just didn't even dawn on me. That was a risk. Well, in that type of he said she said, debate or dispute, who do you think's going to win more often than not? The client. Also, one other thing you're supposed to tell the client under see in the middle paragraph that they should consider seeking independent legal advice with regard to signing the conflict waiver. For little practical advice for you. Don't bring a client in present the client with a conflict waiver or any other document that you presented where it says you should. You have the right to and you should seek independent counsel. Don't bring the client in and have them sign the agreement that day. That's going to be interpreted as you not actually giving the client the opportunity to seek independent counsel. Okay, Just give it a couple of days. Even if, you know the client's not going to seek a consultation with independent counsel. Give the client an opportunity to do so. Because as I said, if you present that document and have the client sign it right then and there, then the perception is going to be a year or two years later when there's when there's an actual dispute that you really didn't give them the opportunity to seek independent counsel. All right. Disclosure of actual or reasonably foreseeable adverse consequences. The attorney should reasonably disclose in writing the perceivable adverse consequences of waiving any conflicts arising out of the attorney's representation, including the nature of the conflict, the purpose of the disclosure, and that is obviously to allow them to make informed consent. The legal and other benefits and detriment resulting from consenting to representation despite the conflict. And he got, like I said, you got to lay it out. The good, the bad and the ugly. And finally, any facts that could have any important bearing on the client's decision. Okay. You rarely see a conflict waiver that is truly compliant with the rules, but try to make sure that yours is because I promise you, if something goes wrong and an ethics or malpractice lawyer takes a look and the conflict waiver does not comply with the rules, then you're going to be disqualified. You could be sued. The transaction that you handled could be undone. It could be a mess, a true mess. Conflict of interest is would say, in terms of the rules, conflicts of interest really tick off a jury the most like loyalty, conflicts, buttering both sides of the bread. Whatever silly expression you want to read, you want to use. You can't do it. And it will really take a client off because clients want lawyers to be loyal. It's not like us lawyers have such a great reputation anyway. It's not like we're going to get the benefit of the doubt from jurors or other people. Doctors probably do, but lawyers not so much. So put it in writing. Document everything. And then down the line. Could be years later, when a claim is brought against you, you can defend yourself. Um. An attorney should disclose in writing facts necessary to enable his or her client to make free and intelligent decisions regarding the subject matter of the representation. Okay, so they need to make an intelligent decision which they can't make. If you just say it'll be fine, I'll take care of you. Please sign here. All right. Now, some conflicts simply can't be waived. Okay. And why is that? The attorney has a duty to preserve the secrets of his or her client or effective, informed, written consent simply is impossible or insufficient. And I'm not going to run through those those circumstances. But anytime one party has a claim against another, a divorce, for instance, okay, the attorney can't represent the wife and the husband and there's no conflict waiver that would allow that period. End of story. Uh, with regard to evaluating the disclosure. So that's, that's something that I would do. So a lawyer has a client sign, a conflict waiver, and then years later, when the proverbial poop has hit the fan, the client is referred to me and say, Well, let me see that conflict waiver that was presented to you and that you signed. Well, I'm going to look at it because if I can help the client out by asserting that it wasn't a valid waiver, you know, I will. So I'm going to look at whether there was a full disclosure made and the client made an informed waiver. Was there insufficient or inadequate disclosure? Well, if so, like said, disgorgement of fees, invalidation of agreement, liability, professional discipline, everything. The whole bucket of bad things that can happen will happen if you have a insufficient conflict waiver. All right. Dealing with this situation. I'm going to wrap up with this. I think I may have a couple of extra minutes. Two years ago, you you represented a single member LLC in a contract dispute. You dealt with Cindy Collins on all important matters, including responding to discovery, preparing her for a deposition, submitting invoices. Et cetera. That litigation ended with a settlement at mediation. Yesterday, you received a phone call from a prospective client who was involved in a bad car crash. Cindy was driving the car that drove through the red light and hit the prospective client. So here it is. You represented Cindy's LLC, and now you want to know, can I sue Cindy? Can I sue Cindy? Well, the answer is yes, you can. First of all, Cindy wasn't your client, the LLC was your client. And as long as you did a good job distinguishing between the two and making it clear to Cindy that you were not her lawyer, but that you were you were going to deal with her because the entity isn't a human. That's fine. She's what's called a constituent. And you're not her lawyer. But you need to make it clear that you're not her lawyer. If she thinks you're you are her lawyer, then that can that can be an issue down the line. The second issue is. Did Cindy tell you confidential information along the way while you were representing the LLC? Did you find out about her assets? Did you find out that she owns six rental properties and she owns them outright? Did you learn that she has a bad driving history? Did you learn something that you would be prohibited from using against her in subsequent litigation? If the answer is yes, then you're still disqualified because you cannot use information that's disclosed to you in the course of representation. Okay. But if you've really kept a strict line between the LLC and LLC and Cindy and have not learned anything that's confidential and would be protected under Rule 1.6, then in that context, you can later bring a claim against Cindy Collins. Okay. Uh, one more really quickly after a colleague refers you a case. Okay. A great case. Some litigation. You'd like to express your thanks by sending her a bottle of wine. May you do this quick? Short answer is no. You cannot. You cannot under rule 7.3 compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client or as a reward for having made a recommendation. Okay. The only exception is if you are a member of a referral service and you can pay to be a member of a referral service or on a lawyer's list, and then you can get referrals that way. So people always ask me, Well, you tell me, I can't send somebody a bottle of wine or a box of candy as a thank you. And what I tell them is, you know what? Do it at the holidays. Just wait and do it at the holidays and don't make it a clear, obvious quid pro quo for the referral of a case. All right. And there's lots of states. Here's a list Arizona, Philadelphia, Rhode Island, South Carolina, all of which have dealt with these rules. Okay. So just be very careful. All right. Thank you very much for listening in. I hope it was helpful. You can Google me and find me if you have any questions. I'm happy to share my PowerPoint. I'm happy to answer questions about any of the hypotheticals or any other questions you may have. Just feel free to reach out to me, either by email or call me. And thank you very much.