By Joan C.
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
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
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
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:
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,
clients informed about the change as required by Rule 1.4(b);
clear that the clients may choose to be represented by the lawyer, the firm, or
another lawyer; and
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
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.
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.
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
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.
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.
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.
To contact the reporter on this story: Joan C.
Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible
for this story: Kirk Swanson at email@example.com
Full text at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2013-4.pdf.
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