The holidays are a time to celebrate and share with family, friends and colleagues. It is also a time to use up personal days that might disappear when the ball drops on Times Square. It is also the time when law firms often dole out bonuses to attorneys and staff, and partners divvy up their draws and bonuses for the year.

With those bonuses in hand, employees and partners may experience the liberating feeling often associated with knowing that they have been rewarded, perhaps inadequately, for their efforts for the firm. For those who are dissatisfied with their jobs, or feel inadequately compensated, it is a time to dream of and seek greener pastures. Therein lies the rub.

Bonus in hand, personal days redeemed, the ties that bind attorneys and support staff may feel less taut, leading the undercompensated and the underappreciated among us to search for new horizons where the bosses and partners are better, and the checks and benefits bigger and better.

Why Lawyers Leave

Numerous studies show that money is not the primary reason people change jobs. In reality, there are many other reasons for departures, and these apply as much to attorneys as to any employment, including:

• Lack of trust and autonomy
• Not being appreciated or recognized
• Lack of respect
• Little to no opportunity for growth and development
• Poor management
• Poor communication
• Feeling over-stressed or over-worked
• Lack of support
• Work-life balance
• Unhealthy work environment or company culture
• Disconnect with company's values
• Disconnect with personal or professional goals
• Changes in one's personal life (geographic move, romantic relationship, etc.)

In my experience representing firms where attorneys, both associates and partners, are departing, and representing many departing associates and partners, I watch as they prepare for the bureaucracy and conflict that often accompanies these decisions. While I am not a psychologist or omniscient enough to know whether the new association is an opportunity or a road to dissatisfaction, I do know that many firms and attorneys caught up in the New Year shuffle often forget or do not give sufficient regard to their ethical obligations, leading to conflicts that could, and generally should, be avoided. Here are some basic pointers.

Remember the Rules of Professional Conduct

Yes, those pesky rules that govern the manner in which we attorneys must deal not only with clients, but with each other. And they come into play in the one type of dispute that is always central to lawyers changing law firms—who owns the clients? The answer is that neither the firm nor the attorney owns the clients, the client "owns" the lawyer.

What I mean is that, when it comes to choosing a lawyer, the client's right to choose counsel is paramount, and all other considerations are secondary. Except in very limited circumstances, clients always have the right to choose their counsel and may select the departing attorney, the departing attorney's old firm, or even a new firm. To exercise this right, attorneys and law firms must provide clients with adequate and accurate information in a timely manner so that no prejudice will arise, regardless of the client's decision.

That is right, the information must be accurate and must be of sufficient quality to permit a client to make an informed decision, no matter how much that may displease one side or the other. I can think of instances when firms tried to prevent clients from selecting the departing lawyer, for example, and they do not end happily.

In one case, a client called and wanted to speak with the now-departed attorney. Despite knowing the attorney's new affiliation, the firm told the client that the lawyer was no longer practicing law and was instead a "clerk" downtown. An internet search by the client quickly disabused him of that notion.

Or, consider another situation when a Social Security disability client appeared for a hearing and the now-departed attorney was not present because the firm never forwarded the hearing notice to him (this was in the days before electronic notices). The firm informed the Judge that the attorney had been fired and that the item was inadvertently not listed on any other attorney's calendar. The judge accepted the excuse until the vocational expert who was present for the hearing inquired about the "fired" attorney, only to learn who it was. The expert knew that the attorney had not been fired, had instead left to join another firm, and was happily employed elsewhere. He informed the judge, who was suddenly less than satisfied with the firm's explanation.

To assure that the client is adequately informed about the transition—and to prevent these types of events—it is best practice for both the departing lawyer and the former law firm to communicate to the clients their various options for retaining counsel, using the following guidelines:

• Firms generally may not bind departing lawyers to leave clients behind.
• Lawyers generally may not promise their firms not to take clients along if they leave.
• Clients do not "belong" either to a lawyer who is principally responsible for their representation or to the lawyer's firm.
• Lawyers and their firms cannot agree among themselves who will "keep" clients if a lawyer leaves the firm.
• Lawyers and their firms cannot enter into unconscionable agreements that ultimately prevent clients from selecting a lawyer after that lawyer's departure.

This approach is consistent with the various Pennsylvania Rules of Professional Conduct that apply, including Rules 1.1 (competence), 1.3 (diligence), and 1.4 (communication).

Although Rule 7.2(a) permits a lawyer to "advertise services through written … communications … not within the purview of Rule 7.3," Rule 7.3 prohibits in-person or telephone solicitation of prospective clients with whom the lawyer has no family or prior professional relationship, and also prohibits written solicitation of prospective clients when, among other things, the person has expressed a desire not to receive such communications. Consequently, a departing lawyer may communicate with clients with whom the lawyer had a prior professional relationship, provided the communications comply with Rule 7.1 and are neither false nor misleading.

Who Can the Departing Contact?

Despite the desire, and despite common practice, the rules and numerous ethical guidance opinions and treatises confirm that it is impermissible to place arbitrary restrictions on who a departing attorney may contact. In reality, the departing attorney and the former firm should notify clients with whom the lawyer had an active lawyer/client relationship immediately before the change. Notice is required only as to open and pending matters for which the lawyer had direct professional responsibility immediately before the change, not every file or client the attorney has ever handled.

Often, there are agreements that try to limit to whom these notices should be sent. Those agreements are generally not enforceable. Rather, if an attorney had primary or significant responsibility with certain clients and matters, they may notify the clients of their new affiliation. Notices should:

• Be sent promptly;
• Not urge a client to sever the relationship with the lawyer's former firm;
• State that the client had the right to decide who would complete or continue the representation;
• Be brief;
• Be dignified; and
• Not disparage the former firm or the attorney.

This latter consideration is often the most difficult for parties to comply with. In theory, everyone wants the departures to be professional and respectful, yet emotions often run high, and tempers and ill will can easily lead to emotions that substitute denigration for dignity.

Do Not Burn Bridges

This is not an ethical consideration, but one that can inure to the benefit of the impacted firm and attorney. At these emotional moments, it is easy to say and do things that will guarantee permanent ill will. For example, not abiding by provisions of pre-existing agreements that address departure obligations is a great way to assure negative feelings. So is making statements that impugn character. At times, however, the bridge not burned is the one that can yield referrals or other opportunities. The jobs website, Monster.com, offers 25 tips for not burning bridges. Here are a few of the most important rephrased in the context of a departing attorney:

• Speaking negatively about the former firm.
• Not giving sufficient notice. It is easy to assume the worst. While preparing for the worst is good practice, so is giving sufficient notice to assure a smooth transition for all.
• Actively sabotaging the work during your final days. Doing so will not benefit the clients—who are paramount—and has in certain circumstances placed attorneys under Disciplinary Board scrutiny.
• Not getting organized before you go. Draft exit memos and take appropriate action to assure that clients and matters that remain with the former firm are properly prepared for new counsel.
• Avoiding people when you see them in public. If you have made a graceful exit, do not do a total 180 when you see them again.
• Not saying thank you to the people you are leaving who have helped your career. They still probably feel positively toward you, keep it that way.

Get Counsel at the First Sign of Trouble

Not every departure will be smooth and, at times, there will be animus. In those circumstances, become a client by hiring an attorney whose practice includes representing attorneys in these situations. That is the advice you would tell clients generally, and it applies to the departing attorney and firm. Counsel can and should avoid the hyperbole and focus on assuring a peaceful transition. Just as you are dispassionate about client matters, so should the attorney retained to handle any disputes.

When leaving a firm, or when an attorney leaves a firm, there are many considerations. But at the core, the key is reducing conflict and making the New Year shuffle, even if it happens in the middle of summer, one that causes the least conflict possible.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of "Fee Agreements in Pennsylvania" (6^th Edition) and author of "Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms" (Second Edition), published by the Pennsylvania Bar Institute. Contact him at [email protected].