MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-20
Duty and/or Right of Attorney Who Leaves Firm to Contact All Estate Planning and Elder Law Clients
You pose two specific questions in your inquiry:
1. Is a law firm required to provide to a departing attorney a complete list of estate planning and elder law clients, for whom an attorney had prepared a health care directive, power of attorney, will, trust, and/or other documents intended to take effect upon the client’s subsequent disability or death, so that the attorney can notify the clients of his new contact information?
2. Are estate planning and elder law clients “active clients” until the client notifies the attorney that he or she has engaged new counsel, otherwise terminated the attorney client privilege, or died?
You state that the former firm provided the departing attorney with a list of clients that it deemed “active,” which it defined as those clients who had been provided legal services by the departing attorney within the six months prior to his departure. You further state that, after his departure, the former firm “for a period of time” provided clients with his new contact information if the client affirmatively requested that information, but thereafter no longer supplied the departing attorney’s contact information to clients who requested it.
Authorities are clear that both the departing attorney, as well as responsible members of the firm, have a mutual obligation to notify “clients” of an attorney’s departure and provide contact information for the departing attorney. Above all, it is the client’s choice as to future representation by the departing attorney, the firm or some other attorney. The Maryland Court of Appeals in Attorney Grievance Commission v. Potter, 380 Md. 128, 844 A.2d 367 (2004), quoted with approval the following:
The withdrawing attorney and the firm also have a duty to orderly maintain or transfer the clients’ files in accordance with the clients’ directions and to withdraw from representing those clients by whom they are discharged. Both the withdrawing attorney and the firm have a mutual duty, not only to the client, but to each other as well, to make certain that these tasks are completed in a competent and professional manner to the reasonable satisfaction of their client.
Given that each client has the right to choose, and make an informed decision1 as to, whether the departing attorney, the firm or another lawyer will continue to represent him, notice of the departure is a necessary precursor to a client making that informed decision.
The critical question posed by your inquiry is how to define the population of “clients” who must be provided this notice2. Rule 1.4 contemplates keeping a client informed about “the status of the matter” so that the client can make an informed decision regarding “the representation.”3 The key then is defining the client’s “matter” and “representation” in the estate planning context, and determining whether representation continues after execution of the documents. In other words, when is the client no longer a “client” for purpose of Rule 1.4?
Albeit not in the estate planning context, ABA Formal Opinion 99-414 limits the population of clients to whom notice of departure should be provided to the departing attorney’s “current clients.” The Formal Opinion defines the departing attorney’s “current clients” as “clients whose active matters the lawyer has direct professional responsibility at the time of the notice.” You reference this ABA Opinion, which presumably gives rise to your second question as to whether estate planning clients are “active” until such time as the client terminates the representation or dies.
Consistent with the ABA approach, this Committee has earlier opined that Rule 1.4 does not require notice of an attorney’s disbarment to former clients who were not affected by either the disbarment or the conduct that lead to the disbarment. Opinion 94-54. Similarly, we opined in Opinion 92-2 that, when an attorney retired from a law firm, that Rule 1.16 (d) required the retiring attorney to send notice to clients who had “open matters,” but that no notice was required to be sent to “former clients” with no open matters.
When analyzing conflict of interest and confidentiality issues, this Committee has viewed clients, whom had earlier received and executed estate planning documents from an attorney, as that attorney’s “former clients.” For example, in Opinion 97-27, this Committee reviewed a scenario where an attorney had represented a husband and wife in “the preparation of wills and estate planning a few years” earlier and thereafter sought to represent the husband in a divorce from the wife. The Committee addressed the “former representation of Wife” and analyzed the conflict under Rule 1.9, which deals specifically with former clients. In that context, even though the wills or other estate planning documents were subject to change, the Committee did not opine that the matter was “active” or that “the representation” of Wife continued to exist. Instead, in analyzing the conflict, the Committee repeatedly spoke in terms of the “former representation.”
Similarly, in Opinion 98-6, this Committee received an inquiry from an attorney who, several years earlier, had prepared estate planning documents and a power of attorney for an elderly lady. The woman’s competency at the time of execution had subsequently been challenged, and the attorney asked whether he could reveal information relative to his former client’s competency. In applying Rule 1.6(a), the Committee referred to the elderly lady as his “former client” and opined that he could not reveal information relating to her representation absent her consent, noting that “[t]he exception regarding disclosures impliedly authorized in order to carry out the representation would not appear to be applicable where the representation ended several years ago.“
This Committee has generally recognized that, when estate planning documents have been prepared and executed and nothing more has transpired, “the representation” and “the matter” have ended. Further, we have not premised the cessation of the representation on any formal act by the client or attorney terminating the representation. The Restatement (Third) of the Law Governing Lawyers, § 31 also recognizes that an attorney-client relationship need not be formally terminated, but instead that “the representation ends as provided by contract or because the lawyer has completed the contemplated services.” Generally, if the attorney was retained to prepare estate planning documents and those services were completed and the documents executed, the Restatement also suggests that the representation ends. As such, we do not believe that there is a duty to provide notice to every former estate planning client for whom the attorney prepared a document.
If there are specific facts or events unique to a particular client’s case that would suggest that the representation has not ended and that the matter remains open, however, then the client would fall within the scope of Rule 1.4 and be entitled to notice. The terms of the retainer agreement or engagement letter are relevant and may define the nature and scope of the representation in a particular case. Other factors to consider may include whether the client has entrusted safe keeping of the original estate planning documents to the particular attorney (as opposed to the firm) or whether the attorney was granted a power of attorney or other authority in a document executed by the client. Where the departing attorney is safekeeping original client documents, as we said in Opinion 92-2, “prudence may warrant giving such former clients notice.” Where the departing attorney is primarily responsible for the client, was specifically retained by the client in the engagement letter, and was specifically entrusted with safekeeping the client’s original documents, such facts may be indicative that the client perceived the representation as continuing. Similarly, where the client has designated the attorney to have certain prescribed authority either presently or in the future, such designation is indicative that the client perceived the representation as continuing in nature. As such, if the scope of the representation has not concluded, but is continuing, then such clients should receive notice.
On the one hand, we cannot generally find an ethical obligation that would compel the firm to provide the departing attorney with contact information for every client for whom a document was drafted. On the other hand, the firm does have an obligation to provide any client who requests the contact information of the departing attorney with that information. If the client has initiated contact with the firm, such indicates that the client is seeking further representation with respect to his or her estate planning and, at that point, is entitled to be notified of the attorney’s departure, the attorney’s contact information, and the client’s right to chose who will represent him or her going forward. Of course, as made plain by the Court in Potter, the firm must abide the client’s wishes regarding transfer of files as well.
We hope the foregoing conclusions are responsive to your inquiry, and we thank you for consulting the Committee.
1 Over the past 20 years, when addressing what clients must receive notice of an attorney’s departure from a firm, the focus has shifted from whether the client belongs to the attorney versus the firm, on the one hand, to assuring that a client remain advised about matters impacting the representation. For example, a couple of decades ago in Opinion 83-59, this Committee cited authorities and ABA Informal Opinions that stated that “where a lawyer leaves a firm to establish his own private practice, he may send an announcement to his individual clients, but not to the clients of the firm whom he has served.” Under that standard, the population of clients to whom notice was directed was tied to the determination of what clients belonged to the attorney versus the firm. The Maryland Court of Appeals has since embraced a different approach, however, making clear that “clients are not the ‘possession’ of anyone, but, to the contrary, control who represents them.” Attorney Grievance Com’n v. Potter, 380 Md. at157, 844 A.2d at 384.
2 Your inquiry asks what clients “must” receive notice of departure as opposed to what clients “may” receive notice of departure. It is ethically permissible for the attorney to have direct contact with clients with whom the departing attorney had established an attorney-client relationship, whether such clients be “current” or “former.” See Rule 7.3(a)(in person, live telephone or real-time electronic contact is not prohibited if the attorney has a “prior professional relationship” with the client.) Of course, the Committee does not opine as to any requirements or prohibitions of law in terms of fiduciary duties, agency, partnership, or unfair competition, and the logistics or timing of any said contact. Again, the question here is which clients “must” receive notice of the attorney’s departure. We limit our response to that specific inquiry.
3 Md. Rule of Professional Conduct 1.4 governs attorneys obligation to communicate with clients, and, in pertinent part, provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) 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.
REFERENCES:
Ethics Opinions 92-2, 94-54, 97-27, 98-6