New Ethics Rule Governing Lawyer Mobility Adopted In Virginia

Allison Martin Rhodes is a Partner in our Portland office, Trisha M. Rich is an Associate in our Chicago office, Mellori E. Lumpkin is an Associate in our Atlanta office.

HIGHLIGHTS:

Virginia's recent adoption of new ethics Rule 5.8 will provide guidance on a common issue to lawyers and law firms managing lawyer departures. The Florida Supreme Court took on this issue in 2005, noting then that the debates between departing lawyers and their law firms were prioritizing lawyer and law firm interests ahead of the interests of the clients. Lateral mobility is not simply a business issue – it is a matter of professional responsibility and carries with it the risk of potential discipline. Virginia's recent adoption of a new ethics rule will provide guidance on a common issue to lawyers and law firms managing lawyer departures. For years, lawyers and law firms have handled difficult and sometimes contentious departures guided only by a patchwork of ethics opinions and commentator advice. However, the recent codification of Virginia's new Rule 5.8, which goes into effect on May 1, 2015, sets forth specific procedures for client notification prior to a lawyer's departure. The new rule may also signal a trend toward state bar regulators' increased attention to the rules governing lateral mobility and the need for clear guidance on how to effectively comply with the bedrock duty of client communication in the midst of a lateral transition. By passing Rule 5.8, Virginia joins Florida, which was previously the only other state that had passed such a rule.

Virginia's Rule 5.8: Procedures For Notification to Clients When a Lawyer Leaves a Law Firm or When a Law Firm Dissolves

Prior to the adoption of Rule 5.8, the procedure for client notification articulated by ethics opinions and commentators generally recommended that the departing lawyer and their soon to be former firm meet upon notice of the lawyer's resignation and agree on a form of joint notification that sets out each client's choices between the law firms and seeks each client's election.1 These procedures and recommendations have grown from the tension between traditional concepts of fiduciary duties owed to the law firm by the departing lawyer, juxtaposed against the client's right to make informed and voluntary decisions about his or her legal representation.2 In this arguably ideal example, clients learn for the first time of the lawyer's intended departure immediately following notice to...