Ethics Question of the Month January 2024

You Can’t Take It With You, Can You?

Can lawyers departing a law firm to join another law firm take firm documents with them to the new firm?

The Situation

Attorney Joshua is a partner of ABC Law Firm. Unbeknownst to his partners, he has accepted an offer to join a competing firm.

Because he is leaving ABC, Joshua decides to take copies of a wide array of firm documents that he can use as templates at the new firm, thereby avoiding having to charge his new clients to recreate such documents from scratch. He downloads copies of some documents on a thumb drive and makes photocopies of some older documents for which electronic versions do not exist.

After Joshua has left ABC, the managing partner of ABC discovers that Joshua has taken copies of documents from the firm’s files. Concerned about potential violations of ABC’s confidentiality obligations to its clients as well as the creation of potential conflicts, the managing partner demands that Joshua immediately return or destroy all copies of firm documents that he took upon leaving the firm. Joshua refuses, maintaining that this is a common way for lawyers to best serve their clients and save them money.

The Question

According to a 2018 Ethics Opinion, which of the following is most accurate?

The Correct Answer is E Of 177 Responses, 34% are correct.

  1. A 43
  2. B 8
  3. C 8
  4. D 57
  5. E 61

The Explanation

Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct states that “confidential information” includes both privileged information and unprivileged client information. “Privileged information” refers to information protected by attorney-client privilege under Texas Rule of Evidence 503 or Federal Rule of Evidence 501. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

Rule 1.05(b)(1) states:

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyers law firm.

While the Rule contains a number of exceptions in paragraphs (c) and (d), none of those apply here. So what can an attorney do when he leaves her firm and wants to take documents that he prepared for clients?

Texas Ethics Opinion No. 670 (March 2018) considered this issue and found that an attorney may – upon leaving a firm and at the attorney’s own expense – make and retain copies of documents regarding client matters in which the attorney personally represented the clients while at the firm she is leaving. The consent of neither the firm nor the clients is required to retain copies of these client documents, provided that the attorney is responsive to a former client’s request for copies of the documents. Redacting any confidential or identifying information is not required prior to leaving the firm.

However, an attorney should be aware that all confidential client information, as defined by Rule 1.05, must be protected as long as the attorney retains the documents. Therefore, attorneys must take steps to ensure that no one at the new firm has access to these documents unless and until all confidential and identifying information has been properly redacted prior to sharing. If the documents are so specific and unique that even a redacted document could reasonably lead to the discovery of client-specific information, those documents cannot be shared. The best response is E.

Bluebook Citation

You Can’t Take It With You, Can You?: Ethics Question of the Month - January 2024, Texas Center for Legal Ethics (2024), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-january-2024/ (last visited Apr 16, 2024)