Departing Lawyer’s Email Account
Adopted: January 21, 2022
Opinion addresses a law firm’s ethical responsibilities as to a departing lawyer’s email account.
Facts:
Departing Lawyer is employed by Law Firm and utilizes an email address associated with the firm. Departing Lawyer has decided to terminate his employment with Law Firm and open his own law practice. Law Firm and Departing Lawyer sent a joint communication to Departing Lawyer’s current clients advising them of the departure and informing them that they have the option to continue their representation with Departing Lawyer, request that another lawyer with Law Firm take over the representation, or engage a lawyer from another firm.
Law Firm seeks guidance as to the ethical requirements relating to Departing Lawyer’s law firm email account after Departing Lawyer has left the firm.
Inquiry #1:
Does Law Firm have an obligation to place an outgoing auto-reply message on Departing Lawyer’s email account announcing his departure, or may Law Firm simply deactivate Departing Lawyer’s email account?
Opinion #1:
In order to comply with its professional responsibilities, Law Firm must keep Departing Lawyer’s email account active and must place an outgoing auto-reply message on Departing Lawyer’s email account. When a lawyer leaves a law firm, “both the departing lawyer and the responsible members of the firm who remain have ethical responsibilities to clients on whose active matters the lawyer currently is working to assure, to the extent reasonably practicable, that their representation is not adversely affected by the lawyer’s departure.” ABA Formal Op. 99-414 (1999).
Lawyers are required to “act with reasonable diligence in representing a client.” Rule 1.3. The requirement to diligently represent clients continues during periods of transition when lawyers must “take care that they continue to fulfill the lawful objectives of their clients.” RPC 48. A component of diligent representation is “reasonable communication” between the lawyer and the client. See Rule 1.4, cmt. [1]. Rule 1.4(a)(3) provides that a lawyer must “keep the client reasonably informed about the status of [the client’s] matter.” The departure of a lawyer who plays a principal role in a client's representation “is information that may affect the status of a client's matter as contemplated by Rule 1.4.” ABA Formal Op. 99-414 (1999). Accordingly, Departing Lawyer’s clients must be promptly notified that Departing Lawyer is leaving Law Firm. As noted above, Law Firm and Departing Lawyer sent a joint communication to Departing Lawyer’s current clients advising them of the departure. However, Law Firm’s obligations do not end once notifications have been sent to Departing Lawyer’s current clients.
Law Firm is required to take reasonable measures to protect the interests of every client, regardless of whether the client remains with Law Firm or leaves with Departing Lawyer. See Rules 1.3, 1.4, and 1.16(d). Email and other communications may continue to come to Law Firm after Departing Lawyer leaves the firm. It is possible that Departing Lawyer’s current, former, or prospective clients may attempt to contact Departing Lawyer through his law firm email account. In addition, third parties involved in ongoing litigation with one of Departing Lawyer’s current clients may attempt to contact Departing Lawyer through his law firm email account. For this reason, Law Firm may not simply deactivate the account. Reasonable measures necessary to protect clients’ interests in this scenario include placing an outgoing auto-reply message on Departing Lawyer’s email account announcing his departure. ABA Formal Op. 489 (2019); Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2013-4.
Inquiry #2:
If Law Firm has an obligation to place an outgoing auto-reply message on Departing Lawyer’s email account, may Law Firm choose the wording of the auto-reply message?
Opinion #2:
Yes, however, the automatic response must include notice of the lawyer’s departure and, if appropriate, must provide new contact information for Departing Lawyer if the contact information is known or reasonably ascertainable by Law Firm. Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2013-4. The response may also include an alternative contact at Law Firm for inquiries.
In circumstances such as those set out in 2013 FEO 8 (Responding to Mental Impairment of Firm Lawyer), or where the departing lawyer is under investigation for serious ethics violations such as embezzlement, the law firm may have a professional responsibility to do more than provide the departing lawyer’s contact information in an automatic response with no further information regarding the circumstances of the lawyer’s departure. In such limited circumstances, the automatic response must include notice of the lawyer’s departure and include a contact at Law Firm for inquiries. Responses to client inquiries regarding the lawyer’s departure should include the lawyer’s new contact information as well as information necessary for clients to make an informed decision about continued or renewed representation by the departed lawyer.
Inquiry #3:
In addition to placing an outgoing auto-reply message on Departing Lawyer’s email account announcing his departure and giving his new contact information, does Law Firm have a duty to monitor and respond to the incoming emails?
Opinion #3:
Yes. While Departing Lawyer’s email account remains active, Law Firm must monitor the email account to ensure clients are not adversely impacted by the lawyer’s departure. Such monitoring is necessary to ensure continued representation of those clients that have elected to stay with Law Firm and ensure prompt transmission to Departing Lawyer of communications that relate to a client that has decided to stay with Departing Lawyer. ABA Formal Op. 489 (2019); Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2013-4. As noted by the Philadelphia Bar Association, “some degree of interaction with the substance of messages to [a departing lawyer’s] old email address would, as a practical matter, be necessary in order for [a law firm] to sort out its responsibilities to current clients, former clients, those clients who have elected to follow [the departing lawyer], as well as to third parties.” Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2013-4. However, individuals responsible for monitoring the account should limit their review of email communications to only enough information to determine where the email needs to be directed.
Inquiry #4:
How long must Law Firm keep Departing Lawyer’s email account active after the lawyer’s departure?
Opinion #4:
As noted above, Law Firm must take reasonable measures to protect the interests of every client. Law Firm must keep Departing Lawyer’s email account active for a reasonable amount of time. After a reasonable amount of time, Law Firm must remove the auto-reply message and deactivate the email account such that anyone contacting the address will receive a generic “undeliverable” message. What constitutes a reasonable time period will vary depending on factors such as the type of law practiced by Law Firm and the caseload Departing Lawyer maintained while at Law Firm. In general, Law Firm must keep Departing Lawyer’s email account active for a three-month period unless there are circumstances that would make it reasonably necessary to shorten or extend the three-month period. In the absence of special circumstances, Law Firm must not keep Departing Lawyer’s email account active after three months. Law Firm must deactivate Departing Lawyer’s email account to avoid giving clients and other third parties the impression that Departing Lawyer remains associated with Law Firm and to prevent clients and other third parties from inadvertently disclosing information to unanticipated recipients.
Inquiry #5:
If a former client emails Departing Lawyer’s email account in search of legal services, may someone at Law Firm reach out to the former client and offer services?
Opinion #5:
Yes. Former clients, and prospective clients, seeking legal representation must promptly be given Departing Lawyer’s new contact information. However, Law Firm may also offer the firm’s services as an alternative. RPC 200.