In the last year, the State Bar Ethics Committee adopted a comprehensive ethics opinion providing guidance on lawyer departures and notice to affected clients. See 2025 FEO 1. This opinion marks a significant improvement over the prior ethics opinions and provides a roadmap for both the departing lawyer and the law firm to help navigate this process more smoothly with a focus on the client’s best interests. The opinion dives deeper into which clients should receive the notice. The answer turns upon whether the departing lawyer had substantial involvement in the case and client contact. The opinion for the first time addresses whether the departing lawyer must notify his firm first before notifying his clients. Quick answer: the ethics rules don’t require prior notice to the firm, but unless client protection dictates otherwise, it’s a good idea to let the firm know first. The ethics opinion discusses the timing of the notice to affected clients and what should be included in such notice, and the opinion continues to encourage the departing lawyer and law firm to work together on a joint notice if at all possible.
As comprehensive as this ethics opinion is, it does not, and cannot possibly, cover every situation that arises when a lawyer departs a law firm. For example, the opinion requires that the departing lawyer and law firm give the client the choice of counsel, including whether to go with the departing lawyer, stay with the firm, or choose completely separate counsel. If the departing lawyer is not in a position to handle the client matter, such as if the lawyer takes a government position, moves out of state, or becomes in-house counsel, then the departing lawyer need not provide himself as a choice. Even where the departing lawyer is not a choice, the choice letter must be provided to the client, according to the ethics opinion, but the choices remaining to the client are stay with the law firm or choose new counsel altogether.
But what if the client’s litigation matter has some upcoming deadlines, or the firm has been working with the client for two years, and it would be difficult, if not impossible, for a new lawyer or law firm to get up to speed? Or what if it would be a significant cost to the client for another firm to do so? The ethics opinion is silent on these kinds of scenarios and how the choice letter should be modified under these circumstances. While the opinion still requires the client to receive a choice letter, it would also be prudent for such letter (1) to provide an explanation to the client of the impact of choosing new counsel, and (2) to recommend what may be in the client’s best interests under the circumstances. The choice is still the client’s, but it would be an informed choice.
Similarly, if the departing lawyer and the law firm agree on the choice letter and also agree that due to the complexity of the matter, the client would be better served staying with the law firm, then that could also be explained to the client. Suppose the departing lawyer is starting her own practice, with limited infrastructure at the outset. While she may be able to handle a complex litigation matter, the departing lawyer may agree that a larger firm with more resources/personnel to devote to the client’s matter would be in the client’s best interest. If both the departing lawyer and the firm agree, even though the departing lawyer may be a viable choice, the choice letter may also include an explanation to the client of why it may be in the client’s interest to stay with the law firm.
The ethics opinion does make clear that the lawyer’s departure may never be used to “cherry pick higher fee-generating client matters and reject others.” But this does not mean that lawyers can’t agree that a particular course may or may not be in the client’s interests and advise the client accordingly.
Lawyer departures are, of course, the most difficult when the departing lawyer and the law firm don’t see eye to eye. Whether you are leaving a law firm, or are navigating a lawyer’s departure from your firm, we can help.
