NYCLA Opinions 727 & 728 (1999)

By Roy Simon

[Originally published in NYPRR December 1999]

Here are two New York County Lawyers Association Opinions, issued June 30, 1999, discussing issues that arise when a judge joins a firm (727), and when the only partner with a particular specialty leaves a firm (728).

When a Judge Joins a Firm (NYCLA Opinions 727, 1999)

Question: May a law firm indicate on its letterhead that a lawyer “of counsel” to the firm is a retired judge?

Answer: Yes, so long as the listing is truthful and not misleading and does not suggest that the law firm has improper influence over a court, legislative body or public official.

Digest: A truthful indication that a retired judge is “of counsel” to the firm does not violate DR 2-101(A). DR 2-101(C)(1) expressly permits a firm “to include information” in its advertising about public offices and teaching positions held by its members, so long as the information is proper under DR 2-101(A) and (B) (prohibiting misleading and untruthful statements). A truthful indication that a retired judge is of counsel to the firm does not violate these provisions. The NYCLA Ethics Committee agreed with the State Bar and the Nassau County Bar that listing the former judge as “of counsel” in its letterhead and other advertising was proper under the Code.

However, the panel also agreed with the New York State Bar that there may be circumstances under which a representation regarding a lawyer’s former judgeship will lead a client to infer that the lawyer could improperly influence a particular court. Such an implication would be improper under DR 9-101©. But the mere listing on a letterhead of a lawyer’s former judicial position would not reasonably warrant such an inference, and is therefore permissible.

When a Partner Leaves (NYLCA Opinion 728, 1999)

Question: One partner in a three-partner law firm has elected to withdraw. What ethical obligations do the remaining partners have to the firm’s clients? The Committee discussed two issues: (a) what steps should the firm take to protect itself against claims of clients arising out of the conduct of the withdrawing partner; and (b) the firm’s options regarding matters that the remaining partners are competent to handle.

Digest: Notice to clients: A law firm may not hold out a lawyer as a partner in the firm if in fact that lawyer is no longer a partner in the firm. [DR 20-102 (C).] The code does not require a law firm to notify all of its clients whenever a partner withdraws form the firm, but:

[T]here may be circumstances in which a failure to notify certain clients of a particular partner’s withdrawal from the firm could be misleading to the clients, in particular, in circumstances in which specific clients believe that the client’s legal matters at the firm are being handled by the former partner. In such circumstances, the law firm is ethically obliged to notify those clients of the partner’s withdrawal from the firm.

Matters outside the competence of the remaining partners. What steps may the firm take regarding clients whose matters the firm’s remaining partners are not competent to handle? Under DR 6-101(A), the law firm many not continue to represent clients on legal matters which the firm knows or should know that it is not competent to handle, without associating with a lawyer who is competent to handle such matters.

Firm Has Three Choices

When a law firm loses a partner who alone in the firm was experienced and competent to handle certain types of legal matters, the law firm has three choices.

(1) The law firm may bring into the partnership, or hire as an associate, a lawyer who is competent to handle these matters. Whether and to what extent the law firm must advise the client of the resulting change in its personnel depends on the particular circumstances, including the scope of the representation and the relationship between the client and the firm, and whether the change in personnel involves a partner or an associate. The firm’s efforts to obtain competence in a particular area must be sufficiently immediate to avoid prejudice to any ongoing client matters in that area.

(2) [W]ith the informed consent of the client, the lawyer may refer the client to another law firm competent to handle the matter. Whether the law firm may continue to represent the client as co-counsel with the other firm depends on the circumstances of the particular matter. Of course, if the law firm joins in representing the client and divides the legal fees with another law firm, the law firm must comply with the provisions of DR 2-107(A), which requires not only informed client consent but also that any division of the legal fees be in proportion to the services performed by each firm or that each firm, in a writing given to the client, assume joint responsibility for the representation. DR 2-107(A) requires also that the total fee fro both firms may not exceed reasonable compensation for all services rendered.

(3) If the law firm is unable or unwilling to avail itself of either of the first two choices, then the law firm must withdraw form the representation. In withdrawing, the law firm must comply with the provisions of DR 2-110(A). In particular, if the departing partner’s matters are pending before a tribunal that requires permission for withdrawal, then DR 2-110(A)(1) mandates that “the law firm must seek permission of the tribunal before withdrawing.” In addition, DR 2-110(A)(2) requires the law firm to take steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. The precise steps to be taken will vary on a case-by-case basis. At a minimum, the law firm must notify the client of the circumstances requiring withdrawal, and take whatever reasonable steps may be appropriate to avoid injury to the client from those circumstances.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Ethical Obligations Partnerships Roy Simon