When an associate leaves a law firm, may both the associate and the firm contact shared clients about continuing representation, and how are the fees divided?

Plain-English summary

An associate planned to withdraw from a firm. At hiring, the associate had signed an agreement to surrender all future business referred by old or new clients after the employment date. The firm asked whether that agreement could bar the associate from continuing to represent his clients who wished to stay with him, what restrictions applied to either side's communications with those clients, and whether the firm could collect fees from the clients or the associate after departure where the departing associate had done all the legal work.

The committee first observed that Illinois had not adopted ABA Model Code DR 2-108(a) or its successor Model Rule 5.6, which bar agreements restricting a lawyer's right to practice after leaving; the Illinois drafters left such covenants to the common law. The committee expressed no view on the agreement's validity under restrictive-covenant law. On client choice, it held that the informed choice of each client governs who continues the representation, notwithstanding the employment agreement, so the clients were free to stay with the associate, the firm, or neither.

On communications, the committee, relying on its Opinions 432 and 84-13, concluded that under former Rules 2-101 and 2-103 a departing associate may tell clients for whom he was responsible of his departure and of their right to stay with the firm or transfer their files, and that the firm, also having an attorney-client relationship, may likewise contact those clients; any such communication may not be false or misleading. On fees, it held that Rule 2-107(a)'s fee-division limits do not apply to division with a firm partner or associate, so fees earned during employment follow the employment agreement, but, per Opinion 84-15, an agreement requiring a departing associate to remit a portion of fees earned after withdrawal violated Rule 2-107.

Currency note

This opinion was issued in May 1987, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (Rules 1.5, 7.1, 7.2, and 7.3), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can the employment agreement stop the associate from keeping his own clients?

A: The opinion concluded that the clients' informed choice governs who continues the representation, regardless of the employment agreement; the clients may stay with the associate, the firm, or neither.

Q: May both the associate and the firm contact the shared clients?

A: Yes. The committee held that under former Rules 2-101 and 2-103 the departing associate may notify clients he was responsible for, and the firm may also contact those clients, so long as the communications are not false or misleading.

Q: Can the firm require the associate to share fees earned after he leaves?

A: No. Relying on Opinion 84-15, the committee held that an agreement requiring a departing associate to remit a share of fees earned after withdrawal violated former Rule 2-107; fees earned during employment, however, follow the employment agreement.

Background and rules framework

The opinion applied former Illinois Code Rules 2-101 and 2-103 (communications with and solicitation of clients) and Rule 2-107 (division of fees). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.5 (fees, including division of fees), 7.1, 7.2, and 7.3 (communications about services and solicitation), corresponding to ABA Model Rules 1.5, 7.1, 7.2, and 7.3.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 2-101 and 2-103 (communications and solicitation, applied in the opinion)
• Illinois Code Rule 2-107 (division of fees)
• Illinois RPC 1.5, 7.1, 7.2, 7.3 (2010 equivalents per the Board's affirmation)
• MR 1.5 (fees); MR 7.1, 7.2, 7.3 (communications and solicitation)

Cases:

• Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (Pa. 1978), cert. denied, 442 U.S. 907 (1979), interference with a firm's client relationships
• Corti v. Fleisher, 93 Ill. App. 3d 517 (Ill. App. Ct. 1981), client choice on a lawyer's departure
• Gray v. Martin, 663 P.2d 1285 (Or. Ct. App. 1983), client choice on a lawyer's departure
• Dwyer v. Jung, 336 A.2d 498, aff'd 348 A.2d 208 (N.J. 1975), client choice on a lawyer's departure

Other opinions cited:

• ISBA Opinions 84-15, 84-13, 725, and 432: associate departure, client communication, and fee division
• CBA Opinion 83-2: permissible contact with clients on departure

See also

• ISBA Ethics Op. 12-11: Discharged-Lawyer Fee Division
• ISBA Ethics Op. 03-06: Fee Share to Former Partner

Source

• Landing page: https://www.isba.org/ethics/opinions/8616