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Ethics Advisory Opinions
UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 97-30Attorney is employed by Law Firm for two years and is paid salary plus a percentage of certain fees generated. After her resignation, Attorney returns to Law Firm on three occasions to try to wrap up unfinished matters. Attorney receives no compensation for this work. During her tenure, client signed Attorney-Client contracts naming Law Firm as counsel. Attorney is told by law firm that all clients will be notified that Attorney is no longer with Law Firm and that the client is free to retain another firm or that another attorney in Law Firm will handle any ongoing matter.
Two months after leaving Law Firm, Attorney receives a Motion To Be Relieved filed by Law Firm requesting that Law Firm be relieved as counsel and that Attorney remain the Attorney of Record. Also, Attorney receives contact from an opposing attorney in another matter notifying her that he had been advised by Law Firm that Attorney was handling the pending case. Attorney took no files from Law Firm and is not presently employed in the practice of law. Attorney has not been paid her last week's paycheck.

QUESTIONS:
1. What would Attorney's responsibilities be to any clients which she handled while at Law Firm?

2. What are Law Firm's responsibilities to these clients?

3. What is Law Firm's responsibility to Attorney for unpaid wages?

SUMMARY:
Law Firm should send the notification letter as promised and continue with the normal responsibilities of representation. Absent notification by Law Firm, Attorney should write to clients to notify them that she is not practicing law and that Law Firm has retained all client files. Law Firm's debt to Attorney is a legal matter, not an ethical matter; therefore, it is beyond the purview of this committee.

OPINION:
Rule of Professional Conduct 1.4 states:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

This Rule necessitates that clients be given timely, accurate information pertinent to their matters. If Attorney who has been handling the client's case is leaving Law Firm, the client needs to be notified. The client should be given enough information to decide whether to stay with Law Firm or to take the case to new counsel. If it is clear that the leaving Attorney will not be practicing law and that continuing the representation with Attorney is not an option, the client should be given this information as quickly as possible.

Another factor to consider is expressed in Rule of Professional Conduct 5.2, entitled Responsibilities of a Subordinate Lawyer. This rule states that a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. The Comment to this rule states ... when lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise, a consistent course of action or position could not be taken. The Comment goes on to state that if a question is reasonably arguable, the authority to determine the course of action ordinarily rests with the supervisor, and the subordinate may be guided accordingly.

Rule 1.5 specifies that certain contracts for representation, as Contingent Fee Agreements, shall be in writing. This factual description does not state the type of representation, and for purposes of this opinion, legal matters as to the client's contract with the Law Firm will not be discussed. As far as the legal responsibility under the Rules, this responsibility would be carried with the Law Firm, particularly since it was named on the contracts as counsel.

Rule 1.7 deals with communication concerning a lawyer's services and states that a lawyer shall not make false or misleading communication about the lawyer or the lawyer's services. This article is referred to by John Freeman in "Ethics Watch", South Carolina Lawyer (November, 1997), p. 12. Professor Freeman states "the best way to advise clients or former clients about their options in the face of a Law Firm split is through a joint letter sent by the departing lawyer and the old firm."

Finally, loyalty to the clients must be considered. The Comment to Rule 1.7 states that loyalty is an essential element in the lawyer's relationship to a client. The Comment states ... loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. Rule 1.7 (b) also states that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's own interests. In this factual situation, it is apparent that attorney is not able to continue the representation of these clients and that the continuation of the representation falls to Law Firm.

If Law Firm has not sent the notification letter, it should do so immediately. Attorney should also write to those clients where questions have arisen over representation.