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Sept. 23 --Ethics rules permit a law firm to look through incoming e-mails addressed to a former partner to see what should be done with them, the Philadelphia bar's ethics committee said in a September opinion (Philadelphia Bar Ass'n Professional Guidance Comm., Op. 2013-4, 9/13).
A departed lawyer may not insist that the law firm set his e-mail account to automatically bounce back incoming e-mails to the sender, the panel said. On the other hand, it added, any e-mails the firm reads that are clearly meant for the lawyer must be forwarded to him.
On another question, the committee advised the firm to keep in escrow a disputed retainer for a case that the departed lawyer took with him until the competing claims to the retainer are resolved.
The managing partner of a law firm contacted the ethics committee after disputes arose between the firm and a partner who left to start his own practice, taking some clients with him. One area of disagreement centered on the firm's handling of the former partner's e-mail.
When the lawyer left, the firm set up his e-mail account to send a reply to incoming e-mails that the lawyer is no longer with the firm. The firm reads the e-mails and forwards them to the ex-partner if they relate to a matter he took with him.
The ex-partner has asked instead that the firm program his former e-mail address so that incoming e-mails simply “bounce back” to the senders with a message that his e-mail account has been closed.
The managing partner asked the committee whether its procedures for handling the departed lawyer's e-mail comply with the Pennsylvania Rules of Professional Conduct, and whether it is obliged to honor the ex-partner's request to bounce the e-mails back without reading them.
For guidance on ethical obligations that come into play when lawyers change firms, the committee consulted Pennsylvania and Philadelphia Joint Ethics Op. 2007-300 (2007), which drew on ABA Formal Ethics Op. 99-414 (1999).
Those opinions indicate that when a lawyer leaves a firm, those with managerial authority in the firm have duties to:
• ensure that the interests of clients in active matters are competently, diligently and loyally represented during the transition in accordance with Rules 1.1, 1.3, and 1.7;
• keep clients informed about the change as required by Rule 1.4(b);
• make clear that the clients may choose to be represented by the lawyer, the firm, or another lawyer; and
• protect the clients' interests upon withdrawal as set out in Rule 1.16(d).
The inquirer's practice of opening and reviewing e-mails addressed to the ex-partner is permissible to the extent necessary to carry these duties, the committee advised.
Those same duties preclude the firm from honoring the ex-partner's request for a simple bounceback of incoming e-mails, the committee said.
Some degree of interaction with the substance of the messages is necessary as a practical matter so that the firm can sort out its responsibilities to current clients, former clients, clients who have elected to follow the ex-partner, and third parties, it explained.
The committee added that reply messages to the senders should include the ex-partner's contact information and that e-mails clearly meant for the departed attorney must be forwarded to him.
The opinion also cites Rule 4.4(b), which requires a lawyer who receives an inadvertently sent document to promptly notify the sender. This rule applies to e-mail that the managing partner reads, the panel said, when the e-mail is clearly meant for the departed lawyer.
The committee said analysis of these issues may be influenced by the partnership agreement, any agreement reached with the departing lawyer about his withdrawal, and the firm's written or customary employment practices.
The inquiring lawyer also asked for guidance about retainer funds it was holding that were paid by a client who elected to follow the lawyer to his new practice.
The engagement agreement between the client and the firm provided that the entire $50,000 retainer would be used for services billed at hourly rates, with the firm handling the matter on a 35 percent contingent fee basis after the retainer was exhausted. Unbeknownst to the managing partner, the other lawyer brought on an outside attorney as co-counsel, and they agreed to reserve $30,000 of the client's retainer for expert fees.
When the lawyer left the firm, $30,000 of the client's original $50,000 retainer remained in the firm's trust account. The inquiring lawyer wanted to apply it to the firm's unbilled time on the matter, which far exceeded the balance of the retainer. However, the departed lawyer claimed the money was to pay experts' fees and requested that it be transferred to him.
The committee advised the firm to hold the $30,000 in escrow until the dispute over the funds is resolved. Although Rule 1.15(e) requires a lawyer to promptly deliver any property a client or third person is entitled to receive, it is not at all clear here that either the client or the lawyer is entitled to receive the disputed $30,000, the panel said.
The arrangement to use the remaining $30,000 for expert fees appears to be contrary to the terms of the engagement letter, and the firm itself has an interest in the funds under that agreement, the committee noted.
Accordingly, it said, the situation is governed instead by Rule 1.15(f), which requires that a lawyer who possesses funds in which two or more persons claim an interest hold the funds separate until the dispute is resolved.
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Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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