The need to keep your website up to date, or advising clients, of important staff changes is part of our duty of courtesy and honesty.
As always, prevention is better than cure and there are precautions that can be taken which reduce the risk of trouble. On 18 June 2015 the New South Wales Law Society adopted a revision of their Best Practice Protocol for the Conduct of Legal Practices and Solicitors Leaving Legal Practices. The following points have been adapted from that protocol and should be agreed to by the parties at the outset:
- Partnership and employment agreements should expressly cover the eventuality of an employee leaving or a practice dissolving.
- The question of the departing solicitor contacting the practice’s clients/former clients should be covered off in any employment agreement, and while no express prohibition on such contact exists in law, it may be proscribed by a reasonable restraint of trade. Prior to departure this issue should be sensibly discussed by the practice and the departing solicitor, but absent such agreed arrangements the departing solicitor should avoid initiating contact with the practice’s clients.
- No member, officer or employee of the practice should give misleading information about the future practice details of the departing solicitor, nor reasons/circumstances surrounding the departure.
- At the request of the client the practice should provide contact details of the departed solicitor, if the practice has been given those details.
- The departing solicitor should not take the contents of a client’s file, nor copies of them, without the agreement of the practice and the express authorisation of the client.
- The departing solicitor should not mislead clients into believing they have an obligation to leave with the solicitor or instruct that solicitor in the future.
- The practice should not impede a request by a client to transfer a client matter to the departing solicitor (subject to the exercise of an effective lien).
- Neither the departing solicitor nor the legal practice should make any disparaging remarks of the other to any client.
At the end of the day, nothing but rancour and reputational damage can be gained by spitefully refusing to pass on the details of a departed solicitor, or allowing a website or social media page to reflect a false state of affairs. Prudent and truly professional practitioners will avoid this state of affairs.