My Shingle

Solo Off to A Bad Start

by Carolyn Elefant on October 15, 2012 · 0 comments

in Ethics & Malpractice Issues, Mistakes/What NOT To Do, Planning a Practice

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Starting a law practice is hard enough, without having to defend yourself in a lawsuit.  But that’s the position that Carolyn Hartle finds herself in, according to the  Sharon Herald, after having launched her new practice while she was still working as an associate at her former law firm, Lewis and Ristvey.  But is this a case of an associate who prematurely  – and unethically – jumped the gun, or a disgruntled law firm desperate to protect its turf?

For now, I’m limited to the the reported facts.  First, the article says that Hartle incorporated her new practice on July 30 and leased space around that time, but did not disclose her intent to start a competing firm.  At this juncture, Hartle did nothing wrong.  Undertaking tasks preparatory to opening another firm on your own time while still employed doesn’t run afoul of any ethics rules. And even assuming that the firm asked Hartle directly if she planned to start a firm, she wasn’t necessarily dishonest in denying her intentions since preparations aside, she may still not have been fully certain.  Indeed, she wouldn’t be the first prospective solo to get cold feet and pull out.

Subsequently, on August 31 while still employed at the firm, Hartle sent a letter on her new firm’s stationary to all of the firm’s clients informing them that she was starting a firm to open on September 17 and giving them an opportunity to transfer their files.  According to the article, several hundred clients executed letters to transfer their representation.

So did Hartle do anything wrong there?  That depends.  According to a Philadelphia Bar Ethics Opinion  and ABA Formal Opinion 99-414,  lawyers can — and indeed, should — issue pre-departure notice to those clients for whom they are handling active, open matters. Failure to do so would leave those clients in the lurch.  While most jurisdictions believe that a joint notice is preferable and some in fact require it, the Philadelphia ethics opinion does not.  Thus, to the extent that Hartle sent a letter to clients she was working with while still at the firm did not run afoul of ethics rules.  If she sent letters to all the firm’s clients, including those with whom she never had any dealings, then her pre-departure notice constituted an unethical solicitation of the law firm’s business.

Of course, what’s ethical doesn’t always align with what’s sensible.  Hartle left the firm on September 7 and could have avoided this mess entirely by simply waiting until then to send out her letters. As for the law firm, arguably, its got potential ethics issues of its own:  as of October 12, 2012, it hadn’t yet removed Hartle from its Findlaw Profile.

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