May 11, 1990
A lawyer who has left a law firm for other private practice may send announcements to clients of the former firm indicating the lawyer's new association, address and phone number.
References: MRPC 7.1, 7.3. CI-247, CI-263, CI-517, CI-662, CI-681 and CI-1133 are superseded.
A salaried associate lawyer currently employed in a professional corporation is contemplating leaving the firm to open a solo practice. After leaving the firm the lawyer wishes to mail announcements to clients whom the lawyer considers to be the lawyer's own clients, but whom the former professional corporation considers to be its clients. There is no agreement between the lawyer and the firm regarding the clients, although the lawyer was responsible for bringing the clients to the firm, billed the clients and collected all monies due, and supervised and delegated all legal work for those clients.
The communication which the lawyer intends to send announces the formation of the lawyer's law practice, identifies firms of which the lawyer shall be of counsel, and provides the address and phone number of the new firm. The lawyer asks to whom the announcement may be sent.
Determining whether the client "belongs" to the departing lawyer or to the firm is a question of fact. "If it is not clear that a client retained a lawyer personally, and not the firm, it should be assumed that the firm was retained," CI-263.
Former opinions have held that a departing lawyer may generally send announcements to individual clients of the lawyer, but not clients of the firm, i.e., those with whom the departing lawyer had no personal relation. CI-681, CI-247. In CI-1133 the Committee held that a departing associate could not send announcements to clients of the firm even if the departing lawyer had substantial personal contact with the client, unless the clients were "clearly his/her clients and not clients of the firm." A departing partner was allowed more latitude in sending announcements to former clients with whom the partner had significant personal contact, although the announcement could not indicate a willingness to continue representing the client, the partner's expertise, or the procedure for discharging the firm [CI-517, CI-662, CI-681].
It appears that under MRPC 7.1 and 7.3, a departing lawyer, whether associate or partner, may advise a client by phone, in-person, or in writing, that the lawyer is leaving a firm, if there is no solicitation. The content of the announcement must comply with MRPC 7.1, and may not be false, fraudulent, deceptive, misleading, compare lawyer services, or give an unreasonable expectation of results that may be achieved. Such a statement, whether written or verbal, as long as it does not ask the client to hire, fire, or make a decision, constitutes permissible advertising under MRPC 7.1.
The communication proposed by the inquirer is not solicitation, does not urge the recipient to recontact the lawyer, and provides no information other than the current location and professional relationship of the departing lawyer. We see no authority for continuing the distinction between departing
associates and departing partners, with regard to the persons to whom MRPC 7.1 communications may be sent. The departing associate may send the announcement indicated to clients of the former firm. The Committee emphasizes that it is not authorized to express any opinion concerning the legal consequences, if any, of the inquirer's proposed conduct.
Opinions CI-263, CI-247, CI-517, CI-662, CI-681 and CI-1133 are superseded.