Solicitation of Law Firm Clients by Departing Partners and Associates: Tort, Fiduciary, and Disciplinary Liability
University of Pittsburg Law Review
May a departing attorney, with or without firm consent, contact clients of the firm, in person or in writing, for the purpose of soliciting their present and future legal business? This is the question being asked because in recent years there has been a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the principles enunciated in Supreme Court decisions of the past decade.
The jurisprudence on this subject is still in its infancy. Neither the 1983 Model Rules, nor their predecessor, the 1969 Model Code of Professional Responsibility (“Model Code”), speaks directly to the question. The economic viability of firms from which attorneys depart, the free flow of information to clients relevant to selection of counsel, and the prestige of the profession are all affected by the confusion over the rules applicable to departure-based solicitation.
There is good reason to conclude that sound legal and ethical principles permit a broad range of departure-based solicitation activities. To say, however, that such conduct should not give rise to disciplinary or civil liability is not to state that the public interest is always best served by such action. In the end, decisions must be made on a case-by-case basis, by individual attorneys—both to those departing from firms and those remaining—as to how departure-based issues may most effectively be resolved
Vincent R. Johnson, Solicitation of Law Firm Clients by Departing Partners and Associates: Tort, Fiduciary, and Disciplinary Liability, 50 U. Pitt. L. Rev. 1 (1988).