When a lawyer leaves a firm, it can be a time of stress and tension. It also often raises many ethical issues. The Law Society receives many questions from our members about the proper procedure to follow in this situation. Stacey McPeek, our new Complaints Counsel, addresses these questions in the upcoming edition of the Benchers’ Digest due out soon. Questions she addresses include:
- Can the departing lawyer solicit their former clients?
- Who should contact clients to advise of the departure?
- To whom can the law firm release the file?
- How does the withdrawing law firm ensure payment?
- What is the procedure to transfer the file?
- Who owns the documents in the file?
- How can I protect myself against a negligence claim or complaint?
In summary, her article states:
- Lawyers must remain professional at all times during this transition period and above all should minimize the expense and avoid the prejudice to the client.
- The client has the right to be informed that their lawyer is leaving a firm and to decide who will represent them.
- The Law Society recommends a joint letter to advise the client of the departure, and of their options to stay with the firm, follow the departing lawyer, or seek new counsel.
- In the absence of a joint letter, a departing lawyer may contact his/her clients to advise of his/her departure and provide new contact information.
- The withdrawing party should transfer the file at the direction of the client. This includes the client him/herself retrieving the file.
- As soon as practicable, the withdrawing party should render an account, provide an accounting of trust funds, notify the client of the withdrawal, and advise of a solicitor’s lien (if applicable).
- Lawyers should not maintain solicitor’s liens, where doing so would materially prejudice the client.
- The withdrawing party should prepare the file to transfer:
- Identify any outstanding undertakings or trust conditions. If possible, satisfy these obligations prior to transfer or confirm that the successor lawyer will honour these obligations. If this cannot be arranged, return the documents subject to trust conditions to the lawyer who imposed them and advise the client of same.
- The client is entitled to all documents on the file, except for those documents created only for the benefit of either the lawyer or the law firm, and for which the client did not pay. These are typically inter-office memos or communications, and accounting and office administration documents.
- If the withdrawing party is uncertain of whether they must provide a document, they should contact the Law Society for an informal opinion.
- If the withdrawing party wishes to keep copies of documents to defend against a negligence claim or complaint, they may at the withdrawing party’s cost.
Please check out her full article and other interesting topics in our next edition of the Benchers’ Digest. We will advise you once it is released, likely within the next few days.