Category: Ethics

BillingClient relationsCommunicationEthicsLaw Practice Management

Practice Area(s) plus 1

image   by Sheila Blackford   ©2016

All lawyers must practice in two areas, their substantive area and ethics.

I remember the chit chat before the first day my ethics course in law school. The consensus was that it was an unnecessary class but would be a welcome break from the substantive law classes. I kept my opinions to myself as I had already found the ABA Model Rules on the Internet and devoured them. I liked Ethics and found the hypos a breath of fresh air, real life dilemmas sure to arise. Looking back almost twenty years later, I think it was the most helpful class as no matter what practice area lawyers get or transition into, ethics is always a plus 1 that stays consistent.

In Oregon, bar complaints are directed to the Client Assistance Office for evaluation of whether there has been a breach of ethical duties that need to be referred to the bar’s disciplinary counsel. Triage. They deal with a lot of complaints from clients and third parties. As long as the CAO has issued their reports, the main complaint areas revolve around communication, neglect, and fees. How easy to fix these problems!

ORPC 1.4 Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

Reasonably Informed.  Some lawyers bristle at this. Clients want to know what’s going on with their case.  It is a pretty easy standard to meet, though beware the subjectiveness of what is reasonable. In the lawyer’s world there are many client matters to be concerned with, some with more pressing urgency than others. In the client’s world, there is only one case: the client’s. Communicate ahead of time how you will communicate, how often you communicate, and when you will communicate. Provide a roadmap of the client matter so that the client understands the real life process of a lawsuit. On t.v. They are in court before the second commercial and the case is settled before the closing credits run. What a shock to find out how long it really takes.

Be clear with the message communicated, I will call you back later, meaning what?? Doubt this is a big deal? Those of you who are parents should think back to your call to the pediatrician when your baby was sick. I was told the doctor would call back and I was frozen for hours next to the phone. Fear clutched at me and I wouldn’t have wanted to eat even if I had walked away from my post into the kitchen. “Teething, just teething could bring on a fever and wailing?” Teething and colic were frightening events to a new parent. The tone of voice delivering the telephone diagnosis just made me feel more distressed and angry to have waited so long for a return call. The doctor was busy with urgent matters and mine concerns were insignificant. Your client feels the same often. If I’d only known that the doctor returned calls from 11:30 to noon and 4:30 to 5:00 or the next morning from 7:30 to 8:00.

Care of your client is easier when you explain timelines ahead of time even though all divorces don’t proceed in the same timeline. Do yourself and your clients a favor by setting forth what happens in a typical divorce proceeding, what can cause delays, when the client should call to report what just happened. Otherwise you may get called when the future ex spouse has taken the bathroom rug. Seriously, one family law attorney shared this very annoyance. I helped her to compose a Call Me Do’s and Don’ts list with a few funny examples thrown in to lighten things up. A divorce is traumatic and emotional and people going through a divorce aren’t going through their best times. And especially for personal injury suits, there long periods when nothing is happening. Because your client is not perched on a chair day after day seeing that nothing is going on, really, you should explain this ahead of time and use simple Status Update forms to quickly check in with your client and reassure you haven’t forgotten your client exists. Think about it: your client is in pain physically, mentally, emotionally thinking about this pain 24/7. A Status Update sent out monthly or bi-weekly is welcome reassurance that you haven’t forgotten. It’s even better than calling your client’s home at noon on a work day to leave a voicemail that all is well, you’re just waiting to receive medical records requested last week from the doctor. Scan that Status Update or bcc yourself or your legal assistant to preserve a record of your client communication.

Reasonable requests for information are handled the same way. If your client is too demanding, you have failed to properly set client expectations. I told my elder law clients in my written fee agreement that I would provide them copies of everything,  which comprised their client file. I gave them a sturdy client file with a copy of their signed fee agreement and with papers write down all their questions so they didn’t forget something they wanted to ask me. I told them to bring this file to every client meeting and to put their copies into it. Documents were hole-punched and stamped “For Your Client File, No Action Needed.” It cut down on multiple phone calls to tell me something or ask me a question they had forgotten earlier.  I adapted this information management tool from teaching sixth graders how to stay on top of their assignments. See if you can adapt it for your own clients.

ORPC 1.3 Diligence. A lawyer shall not neglect a legal matter entrusted to the lawyer.

First thing to consider about client complaints about neglect: communicate don’t ignore your client or your client’s matter. Keep track of deadlines, even those imposed by your client, and use reminders, at least one reminder but this is frequently increased to three because the deadline requires adequate preparation time. Don’t wait until the last minute to do something because technology gremlins love causing printer malfunctions or crashing software programs when either are guaranteed to raise your stress level. Allow the time it takes to avoid poor performance. Notice the word entrusted. A client matter — no matter how small –has been entrusted to you by the client. It is always a big deal to your client. One of the biggest dangers of taking a case out of a desperate need for cash flow is that you may not like that client or the client matter. And what does that encourage? Putting off dealing with the client or client matter. You know that client file languishing on your credenza, office chair, or floor? Tackle it! Sooner than later. Get it done or fire the client before it is too late and you are stuck or have a bar complaint for neglect or a malpractice claim for missing a deadline that causes harm to your client. It is interesting to note that many follow up inquiries after a malpractice claim reveal that the lawyer would not have taken on the case in retrospect. Save yourself and your client needless stress: though shall not procrastinate or neglect a client matter. See the PLF practice aids for calendaring and docketing along with checklists for the substantive areas of law. you need checklists so you don’t overlook anything which is neglecting to do what you are supposed to do and when you are supposed to do it!

ORPC 1.5 Fees (a) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excess fee or a clearly excessive amount for expenses. 

Notice that a fee is evaluated for being in compliance at three distinct times.

1. Enter into an agreement is when you form your contract, verbal (foolish) or in writing, at execution of your written fee agreement (wise).

2. Charge for fees or expenses. Sending out your monthly billing statement.

3. Collecting for fees or expenses. When client pays you.

All three times must be reasonable. What is reasonable? See Rule 1.5(b). Review the Economic Surveys on the OSB website which provide details about what is customarily charged, where, and by whom. http://www.osbar.org

Enjoy your practice of XYZ law and ethics!

 

 

 

 

 

 

 

 

 

Client relationsCybersecurityEthicsTechnology

Acting Competently: Complying with data security laws

image    by Sheila Blackford   ©2016      Lawyers have a fiduciary duty to preserve client confidentiality that has long been codified in Oregon under ORPC 1.6 Confidentiality of Information. For more than a quarter of a century, paper-based client files have become electronic files. The need to protect electronic client records has only become more imperative as lawyer have transmitted and stored their client files on the Internet.

ORPC 1.6 (7) (c):

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

 ABA Model Rule 1.6 Comments 18 and 19:

 Acting Competently to Preserve Confidentiality

[18]   Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.  The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.  Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule.  Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.  For a lawyer’s duties when sharing information with nonlawyers outside the lawyer’s own firm, see Rule 5.3, Comments [3]-[4].     

[19]   When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.  Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.

DATA BREACH.

The words should fill you with dread. Then you will have the proper mindset to address the necessary protections so that you can prevent a data breach or at least insure that if data is breached, the data has been rendered unreadable because it is encrypted.

Be concerned about a breach of security and personal information. Both are defined terms in the Oregon Identity Theft Protection Act.  ORS §§646A.600-646A.628.

 What is a breach of security?

ORS §646A.602 (1)(a) “Breach of security” means unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal information maintained by the person. 

 What is encryption?

ORS §646A.602 (6) “Encryption” means the use of an algorithmic process to transform data into a form in which the data is rendered unreadable or unusable without the use of a confidential process or key.

What is personal information?

 ORS §646A.602 (11) “Personal information”:

(a) Means a consumer’s first name or first initial and last name in combination with any one or more of the following data elements, when the data elements are not rendered unusable through encryption, redaction or other methods, or when the data elements are encrypted and the encryption key has also been acquired:

(A) Social Security number;

(B) Driver license number or state identification card number issued by the Department of Transportation;

(C) Passport number or other United States issued identification number; or

(D) Financial account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to a consumer’s financial account.

(b) Means any of the data elements or any combination of the data elements described in paragraph (a) of this subsection when not combined with the consumer’s first name or first initial and last name and when the data elements are not rendered unusable through encryption, redaction or other methods, if the information obtained would be sufficient to permit a person to commit identity theft against the consumer whose information was compromised.

(c) Does not include information, other than a Social Security number, in a federal, state or local government record that is lawfully made available to the public.

How do we develop safeguards for this personal information?

 Requirement to Develop Safeguards for Personal Information ORS §646A.622

646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement. (1) Any person that owns, maintains or otherwise possesses data that includes a consumer’s personal information that is used in the course of the person’s business, vocation, occupation or volunteer activities must develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the personal information, including disposal of the data.

(2) The following shall be deemed in compliance with subsection (1) of this section:

(a) A person that complies with a state or federal law providing greater protection to personal information than that provided by this section.

(b) A person that is subject to and complies with regulations promulgated pursuant to Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on October 1, 2007.

(c) A person that is subject to and complies with regulations implementing the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. parts 160 and 164) as that Act existed on October 1, 2007.

      (d) A person that implements an information security program that includes the following:

(A) Administrative safeguards such as the following, in which the person:

(i) Designates one or more employees to coordinate the security program;

(ii) Identifies reasonably foreseeable internal and external risks;

(iii) Assesses the sufficiency of safeguards in place to control the identified risks;

(iv) Trains and manages employees in the security program practices and procedures;

(v) Selects service providers capable of maintaining appropriate safeguards, and requires those safeguards by contract; and

(vi) Adjusts the security program in light of business changes or new circumstances;

(B) Technical safeguards such as the following, in which the person:

(i) Assesses risks in network and software design;

(ii) Assesses risks in information processing, transmission and storage;

(iii) Detects, prevents and responds to attacks or system failures; and

(iv) Regularly tests and monitors the effectiveness of key controls, systems and procedures; and

(C) Physical safeguards such as the following, in which the person:

(i) Assesses risks of information storage and disposal;

(ii) Detects, prevents and responds to intrusions;

(iii) Protects against unauthorized access to or use of personal information during or after the collection, transportation and destruction or disposal of the information; and

(iv) Disposes of personal information after it is no longer needed for business purposes or as required by local, state or federal law by burning, pulverizing, shredding or modifying a physical record and by destroying or erasing electronic media so that the information cannot be read or reconstructed.

(3) A person complies with subsection (2)(d)(C)(iv) of this section if the person contracts with another person engaged in the business of record destruction to dispose of personal information in a manner consistent with subsection (2)(d)(C)(iv) of this section.

(4) Notwithstanding subsection (2) of this section, a person that is an owner of a small business as defined in ORS 285B.123 (2) complies with subsection (1) of this section if the person’s information security and disposal program contains administrative, technical and physical safeguards and disposal measures appropriate to the size and complexity of the small business, the nature and scope of its activities, and the sensitivity of the personal information collected from or about consumers. [2007 c.759 §12]

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

Patients have federal legal rights to their protected health information. We sign forms about our privacy every time we go to the doctor’s office, treatment clinic, or hospital. Doubtful the average lawyer let alone average person has ever read the HIPAA rule which is nearly 700 pages long. Where this impact lawyers is when they are business entity that deals with health care providers, which includes CPAs, doctors, and lawyers.

HIPAA in Oregon. Oregon acknowledges a number of health-care provider/patient privileges that include preventing others from disclosing communications made with the health care provider for the purposes of treatment and diagnosis.  See OR. REV. STAT §§40.230, 430.235. Remember, that federal privacy regulations under HIPAA will preempt state laws unless the pertinent state law is more stringent.  See 65 Fed. Reg. 82,462, 82,464.

Lawyers need to be careful of individually identifiable health information. The best way to protect confidential client data: ENCRYPTION. Encrypting data which is then properly backed up and stored is the easiest way to begin fulfilling your obligations under HIPAA and under ORPC 1.6.

Gramm-Leach-Bliley Act 15 U.S.C. §§ 6801-6809 and §§ 6821-6827, as amended

  Under the Gramm-Leach-Bliley Act, financial institutions must protect the privacy of consumers’ personal financial information. This is why your financial institution provides you with annual notice of their privacy policies and why they must give notice and an opportunity to opt of before disclosing any of the consumer’s personal financial information to an unaffiliated party.

For lawyers, consider that you contain personal financial information in your client files, such as credit card numbers and bank account numbers. There may be a number of reasons that you have copies of your clients’ financial account statements, loan applications, tax returns, financial documents used in bankruptcies and dissolutions of marriages and business partnerships. How are you protecting the confidentiality of this information? Where are you storing it?

The best way to protect confidential client data: ENCRYPTION. Encrypting data which is then properly backed up and stored is the easiest way to begin fulfilling your obligations under Gramm-Leach-Bliley Act and under ORPC 1.6.   

Business PlanningEthicsLaw Practice ManagementLawyer AssistanceProfessionalism

The Gift of Time

 

image    by Sheila Blackford   ©2015   The 2015 holiday season is in full swing. This time of year, many lawyers question if they should leave their law firm and go solo or start up their own multi-attorney firm or just hang it up and retire or switch careers. These are all things that are best to think about. I just question whether this might not be the best time to be making such life changing decisions. It’s a bit like deciding whether to get a divorce. Good to consider but with the stress of the holidays and busy pace of visiting family and friends, this may not be the time when you can do your best thinking. Can you give yourself the gift of time?  Why, you ask? To give yourself time to consult with a good lawyer: yourself.

Take the time to think things through.

  • Can you see where this decision leads?
  • Do you need to sit down with a financial advisor to crunch numbers?
  • What about covering health insurance for you and any family members?
  • What practical considerations are needed in place to help you in the first six-month transition period?
  • Do you have the stomach for flying solo or weathering difficult relationship issues involving sharing control and maintaining trust?
  • If employees will be involved, do you have all the human resources areas taken care of before you create a BOLI complaint or lawsuit?
  • Do you need to sit down with a CPA and your tax returns and financial projections to determine your right choice of entity?
  • Should you and your prospective law partners do Myers Briggs, Strengthfinders, or some other psychological testing to determine if you really will bring compatibility and balance to the planning table?

Know your resources.

Oregon State Bar Economic Survey.

Oregon Attorney Assistance Program Attorney Counselors. For assistance with career planning and counseling.  503-226-1057  or 1-800-321-6227

  1. Shari Gregory, LCSW, JD on Ext. 14.
  2. Kyra Hazilla, JD, MSW on Ext. 13.
  3. Mike Long, JD, MSW, CEAP on Ext. 11.
  4. Douglas Querin, JD,LPC, CADCI on Ext.  12.
  5. Bryan Welch, JD counseling intern on Ext. 19.

Oregon State Bar General Counsel’s Office for assistance with ethics questions arising in the practice of  law. 503-620-0222 or 1-800-452-8260

  1. Helen Hierschbiel, General Counsel on Ext. 361. Will become Executive Director of OSB January 2016.
  2. Amber Hollister, Deputy General Counsel on Ext. 312. Will become General Counsel of OSB January 2016.

Oregon State Bar Client Assistance Office for assistance with initial screening of ethics complaints about lawyer conduct. 503-620-0222 or 1-800-452-8260

PLF Attorney Practice Management Advisors for assistance with the business of practicing law, including closing a law practice, departing from a  law firm, retiring or selling a law practice, or opening a new law practice.  503-639-6911 or 1-800-452-1639

  1. Sheila Blackford, JD on Ext. 421.
  2. Hong Dao,  JD on Ext. 412.
  3. Jennifer Meisberger, JD on Ext. 411.
  4. Beverly Michaelis, JD on Ext. 415.

PLF Claims Attorneys for assistance with handling situations where there is a concern of a potential malpractice claim. The receptionist will connect you to an available claims attorney.  503-639-6911 or 1-800-452-1639

PLF Practice Aids and Forms

 

EthicsLaw Practice ManagementTechnology

Guarding against Inadvertent Disclosure: Properly Remove Metadata and Redact Before Transmitting Digital Docs.

image   by Sheila Blackford    ©2015

Guard against inadvertent disclosures by properly removing metadata and redact confidential information before transmitting those digital documents.

Some lessons are so important, they bear repeating. For years the Practice Management Advisors at the PLF and through out the USA and Canada have cautioned lawyers about scrubbing metadata from documents.

Here is a brief snippet from my May 2006 Oregon State Bar Bulletin Managing Your Practice article, Metadata: danger or delight?

“…Much hype has surrounded metadata ever since the March 4, 2004, CNET News.com disclosure that SCO Group’s lawsuit against defendant DaimlerChrysler for alleged violation of their Unix software agreement was initially prepped as a lawsuit against Bank of America for copyright infringement. You may have enjoyed the benefit of using a suite of programs like Microsoft Office, especially because it is easy to pull data from one program into another, such as copying part of an Excel worksheet into a Word document. However, if you do this from the Edit menu using the “Paste Special” feature and selecting “Microsoft Excel Worksheet Object,” you may be in for a surprise. Double-click on the Excel worksheet object in your Word document and you’ll discover that the entire worksheet document is visible, including other worksheet tabs that may contain sensitive information. The entire Excel worksheet is known as an embedded object and is metadata that travels with the Word document. Thus, the full Excel worksheet can be viewed by the receiver of the Word document, even though you didn’t intend that result. The detriment of exposing more that a select portion of an Excel spreadsheet may be exponential if the additional figures pertain to your negotiation strategy on settlement offers or disclose profit projections for complex financing plans.

In complying with discovery requests, you are required to provide only the documents and data set out in the discovery demand. Beware — if supplying electronic versions of your documents — that you are not providing more information than required by inadvertent disclosures in document metadata.”

And a year later, then OSB General Counsel now Executive Director Sylvia Stevens warned lawyers about the perils of being unaware of metadata and referenced the August 2006 ABA Formal Opinion 06-442 Review and Use of Metadata in her April 2007 OSB Bulletin Bar Counsel article, Metadata: Guarding Against the Disclosure of Embedded Information.

“The ABA opinion stands as an important reminder that it behooves lawyers to learn and understand technological advances that are integral to their practice so that they do not inadvertently send information that they might later wish they had not.”
 

And a few years ago, OSB General Counsel Helen Hierschbiel cautioned lawyers about the perils of inadvertent disclosures when sending documents electronically in the June 2012 OSB Bulletin Bar Counsel article, Revealing Bits & Bytes:
Guarding (and Exploiting) Metadata
.

“Two rules inform a lawyer’s duties when sending documents electronically. Oregon RPC 1.1 requires a lawyer to provide competent representation to a client, meaning the lawyer must possess the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” In addition, RPC 1.6(a) requires a lawyer to “not reveal information relating to the representation of a client.” “Information relating to the representation” is a defined phrase under RPC 1.0(f) and includes both information that is subject to the attorney-client privilege and other information gained during the course of the representation that the client has asked be kept secret or the disclosure of which would be embarrassing or likely to be detrimental to the client. With these two rules as a backdrop, the OSB Legal Ethics Committee concludes that competency in relation to metadata requires a lawyer who uses electronic communications to maintain at least a basic understanding of the technology and the risks of revealing metadata or to use adequate technology support. OSB Formal Op. No. 2011-187.”

To safely redact confidential and/or protected information when producing discovery or eFiling, be sure to use Adobe Acrobat XI Pro and follow the easy steps I shared in my June 2012 OSB Bulletin On Professionalism article, Easier Acrobatics: New Adobe Features Especially Appreciated by Attorneys.

“How to Remove Visible Data or Do Redaction from PDF Files in Four Easy Steps:

This can be done in Acrobat XI Pro only.

1. In Acrobat XI, choose Tools > Protection.

2. Click Mark for Redaction.

3. Go through your PDF and highlight the text or images you want to redact.

4. Click Apply Redactions. Acrobat permanently deletes the selected information from the file, replacing it with black blocks or other formatting of your choice.”

Why all the concern? Lawyers are continuing to trip when they should be treading carefully, as stressed in this Law360 post: E-Filing Error Can Destroy Trade Secret Status that you can read in its entirety with a free 7-day subscription.

 “First rule of thumb in trade secrets litigation? A trade secret must be kept secret. It is painfully obvious, but modern practitioners must not grow complacent due to the convenience of electronic filing. Although trade secrets law does not command absolute secrecy, a recent e-filing snafu in HMS Holdings Corp. v. Arendt offers a cautionary tale from New York on how one botched upload could jeopardize a client’s most prized possession.”

Make no mistake, ABA Model Rule 1.1 specifically addresses the need to be competent when using technology, see the December 2013 Your ABA article Duty of Competence in the 21st Century

Model Rule 1.1:

Client-Lawyer Relationship
Rule 1.1 Competence

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment 8:

Maintaining Competence

[8] “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

Be safe out there!

Client relationsEthics

Departing a firm ethically with grace

image   by Sheila Blackford   ©2015   I get a lot of calls from associates and partners wanting to leave their current firm to pursue the opportunity of moving to another firm or to pursue the dream of opening their own law office. The PLF has a variety of helpful materials on this topic “Departing a Firm” including checklists, sample letters for notifying clients and getting the direction of what the client wishes to do, instructions for setting up email bouce-back notices and articles from our Oregon Bar Counsel Helen Hierschbiel, General Counsel, and Amber Hollister, Deputy GC. There are many good CLEs held on this topic. This past week I attended a CLE from Bloomberg BNA on this topic called, “Lawyer Mobility: Ethical Issues Arising From Lateral Hires, Partner Withdrawals and Law Firm Dissolutions.” You may be able to watch this 90 minute on-demand by contacting Bloomberg BNA Professional Learning. www.bna.com

Here are some of the issues you need to consider before acting: you have a duty to your clients to communicate. Oregon RPC 1.4 Communication (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. The fact that you will be leaving the firm impacts your clients. They came to you for help in solving a legal problem. No matter your personal feelings of disenchantment with your firm, do not drag your clients into the middle of any conflicts.

Here are some frequent questions that cause anxiety:

“When can I ethically tell my clients I am planning to leave?” The common sense answer: “Tell your clients after you tell your firm.” That’s right, after. You get this one wrong and your relationship with your present firm is damaged. If you are a partner, you have a duty to your fellow partners and to the firm. If you are an associate, you have a contractual relationship with your employer.

“When do you need to tell your firm you are planning to leave?” If you are a partner, look to your partnership agreement. Remember you are withdrawing from the partnership. If you are an associate, look to your employment contract or personnel manual.

“What if my firm does not have anything in writing?” If there is nothing in writing to guide you, most professionals provide at least 30 days notice if not 60 days notice. You don’t want to damage your firm, merely move on. If you are in a general partnership, see the Oregon Revised Partnership Act, ORS 67 for governing provisions. If you are in a Limited Liability Partnership, LLP, see the Uniform Limited Partnership Act, ORS 70 for governing provisions.

“What about getting information for my conflicts of interest database?” If you have billed on a client matter, you have knowledge of client information that means a potential conflict of interest going forward.Some firms supply year-end and month-end reports of your billing matters. If not, you will want to ask your firm for this information.

“What about when I tell my firm about my plans?” Take the time to plan how this event will take place. Preparing an annotated status report of client maters you are responsible for or have been working on is important and appreciated. Additionally, you may want to have a packet of materials with you when you notify your firm: client status report, proposed letter to clients, copy of article addressing ethical guidelines, proposed timeline of your exit and transition of remaining clients to another attorney in the firm. Be sure to make a copy for yourself which will be important if the firm tells you to leave immediately or by the end of the day or week.

“What about forms and sample documents I’ve used or even created while at the firm?” Consult a lawyer about this. Generally speaking, if something was created during your employment by a firm, it belongs to the firm. Most firms have monitoring provisions in place, or the ability to do so. Your efforts to download documents from your firm’s server is not under the radar. There are records of this and there may be consequences if you help yourself to property of the firm with the intention of converting it to your own use at your next firm. You wouldn’t dream of collecting office supplies. Consider that the firm’s form bank is far more valuable than post-it notes and paper clips!

Finally, to ensure that you are going to exit your firm ethically and gracefully, consider seeking ethics advice from the Oregon State Bar Ethic Counsel or hire outside ethics counsel to guide you through your situation. Whether you are a partner or an associate, you are an Oregon attorney-at-law, a professional. Conduct yourself accordingly. Good luck in your future endeavor.