OTLA Trial Lawyer Winter 2021

16 Trial Lawyer • Winter 2021 remember is you can do this if you want to. Running a law practice, particularly one centered on Oregon state court and its relatively laid-back and inexpensive discovery process, is somewhat simple: You need a license, malpractice insur- ance, a laptop and a phone. You should also have a financial plan to weather a lean first year or two, a business plan to generate cases and a peer group (OTLA!) to help answer common questions. Making the jump Once you have made the decision to leave, plan carefully. “Hope for the best, but plan for the worst” is always a good lawyer’s maxim. First, consider the ethical and practi- cal considerations. As of this writing, the PLF website’s form library contains an excellent array of resources under the category, “Departing a Firm.” Great places to start include “Checklist for Departing Attorneys,” Amber Hollister’s 2012 Bar Bulletin article, “Seeking New Horizons: Ethical Duties When Chang- ing Firms” and OSB Formal Ethics Opinion No. 2005-70 “Lawyer Chang- ing Firms: Duty of Loyalty.” (Note that for these last two resources, the RPCs discussed regarding client solicitation have since changed.) The forms also in- clude sample letters to clients about a lawyer’s departure. In broad summary, a departing lawyer must consider ethical and fiduciary du- ties to the firm and clients, although the clients’ interests are always paramount. If a departing lawyer performed signifi- cant work on a client’s matter, the client must be informed of the upcoming split. If the departing lawyer will not be doing similar work as a solo, there will be few practical or ethical difficulties.The client will be informed, and that will essentially be that. However, if the de- parting lawyer will be doing similar work as a solo, the client may choose to leave with the lawyer, and this is where conflict tends to occur. Ideally, the firm and the departing lawyer will send a joint letter modeled on the PLF’s sample to all af- fected clients, and the client will make his or her choice and return a signed letter. If the firm and lawyer cannot agree on a joint letter, each will send separate communications. Firms and departing lawyers should not engage in “campaigning” to keep (or repel) any affected clients. However, it is an unfortunate reality that some amount of campaigning often occurs for high- value clients. This is one reason why it is best for an associate not to unnecessarily alert the firm to an upcoming departure. Once a firm understands an associate is eyeing the door, it may move to reassert its direct involvement with the departing lawyer’s higher-value clients or even re- assign the lawyer to lower-value matters. (The associate should also carefully re- view the PLF resources above concerning the potential pitfalls of misleading firms or clients about the lawyer’s future plans.) Next, review any employment agree- ment very carefully. If clients might end up leaving with you, be sure you have a solid idea of what will happen with re- gard to advanced costs and the eventual fee (if contingent). This is often younger lawyers’ first experience with quantum meruit princi- ples, the general rules of fairness that may ultimately determine (where no sufficient written agreement exists) how a contin- gent fee will be split between lawyers who worked on the same file before parting ways. Generally, the departing lawyer will not be entitled to a contingent fee split on cases that stay with the firm, because they were paid a salary to perform the work up until their departure. For each contingent fee case that leaves with the lawyer, however, the two sides will need to come to a suitable and ethical fee- splitting agreement, and obtain informed consent from each affected client. It is a good idea to memorialize every under- standing in writing. If your split is less than amicable (and it frequently occurs that splits start out amicably but then break down), the best advice I can give you is slow down. Do not act or respond rashly, and follow the New York Times rule in any written cor- respondence ( i.e. write nothing you would be ashamed to see published for all to see). Take the time to first consult trusted colleagues or ethics opinions or advisors at the PLF. Many people have been through this process before, and there are usually clear answers to any practical or ethical questions raised dur- ing the split. Despite occasionally heated talk or threats, it is rare for lawsuits to actually result from an associate’s depar- ture. If fee disputes truly cannot be re- solved, typically the lawyers will agree on a single arbitrator, make their respective cases for fair splits and then live with the arbitrator’s ruling. Finally, consider actually hiring an attorney to negotiate your exit on your behalf. If the alternative is a truly un- pleasant process with an embittered or Look Before You Leap Continued from p 15