Solicitation of Law Firm Clients by Departing Partners and Associates : Tort, Fiduciary, and Disciplinary Liability

Recent years have seen a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm's clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the principles enunciated in Supreme Court decisions of the past decade dealing with commercial speech about legal services.In this Article, Professor Johnson endeavors to comprehensively chart and evaluate the myriad aspects of the new jurisprudence on departure-based solicitation which is now emerging in piecemeal fashion from court decisions, ethics opinions, and legal scholarship. The Article considers bath the disciplinary ramifications of such conduct, and the closely related question of whether such solicitation may give rise to civil liability under the law of torts or the law of agency. Concluding that certain varieties of departure-based solicitation are ultimately likely to be deemed permissible, Professor Johnson discusses the issue of whether, and by what means, a firm may endeavor to protect itself from loss of clients to an attorney who leaves the firm. Finally, a model rule of ethics is proposed for the purpose of rectifying. in a manner consistent with Supreme Court precedent, the current precedential confusion in the field