At the Law Society of Upper Canada's June 2017 Convocation the Rules of Professional Conduct were amended to add a new rule (Rule 3.7-7A) governing a lawyer’s professional obligations when leaving a law firm. This is a welcome amendment. Previously, there was a dearth of available guidance. While at one point there were guidelines on the LSUC website titled: Leaving a Law or Legal Services Firm (dated June 2009), they were removed some time ago. Lawyers have had to turn to case law and guidance from the Courts (see Robert Findlay Law Office Professional Corporation v Werner, 2015 ONSC 2955 (CanLII))
The amendments reflect recent changes to the Federation of Law Societies Model Code of Professional Conduct and are applicable to paralegals as well.
What are a Lawyer’s Obligations?
The new Rule states, in part:
Rule 3.7-7A(2)
When a lawyer leaves a firm to practice elsewhere, the lawyer and the remaining lawyers shall:
a) ensure that affected clients are given reasonable notice that the lawyer is departing and are advised of their options for retaining counsel; and
b) take reasonable steps to obtain the instructions of each affected client as to whom they will retain to act in relevant matters.
The Commentary to the new Rule emphasizes that the client's interests are paramount. A client is free to decide whom to retain as counsel without undue influence or pressure by either the lawyer or the firm. The client must be provided with adequate information to make an informed decision about their legal representation. The leaving lawyer and the law firm must work cooperatively and professionally to ensure the client is not negatively affected. When notifying a client, the client must be aware that they have options: go with the departing lawyer, remain with the firm, or retain new counsel.
The Commentary also notes that while it is preferable to prepare a joint notification setting out the required information, factors to consider in determining who should provide the notification to the client include: the extent of the lawyer’s work for the client, the client’s relationship with the other lawyers in the law firm, and access to client contact information. Where there is no agreement, both the departing lawyer and the remaining lawyers should provide notification.
Furthermore, departing lawyers should notify their firms first (before their clients) that they are leaving the firm. This new Rule also applies to the dissolution of a law firm.
Interestingly there is no specific commentary prohibiting non-solicitation. In the case of Robert Findlay the Court noted that “contacting a client for the purpose of solicitation of a retainer is not permitted”. No such express language can be found in the new Rule, although the commentary does say that clients should make their decision “without undue influence or pressure” and that clients must be notified of their options.
For more information see the new Rule and the Report to Convocation regarding the amendments. Also, see Erin's blog post: What Are a Lawyer's Professional Obligations When Leaving a Law Firm, about the Robert Findlay case.
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