QUESTION:
An associate of your firm has provided notice that she will be leaving the firm at the end of the month. Upon receiving this notice, your firm and the departing associate appropriately notified all clients for whom the associate was providing material representation. Your firm just updated its website last month and all group firm photos feature the associate prominently alongside you and your partner. These photos are currently used in an advertising campaign that is scheduled to run for another six months.
Your firm:
A. Is not required to take any action on the website or the advertising campaign because the departing attorney is merely an associate, not a partner of the firm.
B. Is obligated to update both the firm website and advertising materials promptly to remove any reference to the associate, including images.
C. Is obligated to update the firm website immediately, but may let the advertising campaign run its course.
D. Is obligated to remove the associate from the website the next time the firm determines that a website redesign is necessary, but must cease running the advertising campaign immediately.
CORRECT ANSWER: B. Is obligated to update both the firm website and advertising materials promptly to remove any reference to the associate, including images.
A recent Missouri Informal Ethics Opinion states that when an attorney leaves a law firm, the firm’s lawyers should “promptly update advertising materials, the firm’s website,…and other communications to avoid false or misleading information as to the lawyers associated with the firm.” See Missouri Informal Advisory Op. 2020-06.
Missouri Rule of Professional Conduct 4-7.1 states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. The Comment to the rule states that this requirement “governs all communications about a lawyer’s services,” which would include both the firm website and all print, digital and other forms of advertising. Indicating that an attorney is associated with the firm when that is not the case, regardless of whether that attorney is an associate or a partner, would be a false or misleading communication about the firm and the firm’s services.
Though the opinion does not explicitly define the term “promptly,” it is fair to say that allowing an advertising campaign containing misleading information about a firm to run for six months would violate the rules of professional conduct. This may result in additional expense to the firm, but that expense does not justify violating an attorney’s ethics obligations. The same goes for a firm’s website.
The firm must also remove the departing attorney from the firm letterhead. If the departing attorney were a named partner instead of an associate, the firm would also need to change its name and all references to the firm name in any advertising materials or other communications. Rule 4-7.5 prohibits lawyers from using firm names, letterheads or other professional designations that would violate the prohibition on false or misleading statements about the firm. Comment [1] to Rule 4-7.5 states that it is “misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.”
The opinion also notes that the firm should terminate the departing attorney’s access to the firm’s trust accounts, and that other steps may be appropriate to protect the interests of the clients as set forth in Rules 4-1.16: Declining or Terminating Representation, 4-1.1: Competence, and 4-1.3: Diligence.
Sometimes attorney departures are emotional events, which can lead firm members to act rashly. From a risk management perspective, it is wise for law firms to think through these issues and develop a firm procedure ahead of time to respond to attorney departures from the firm to ensure that all ethics duties and malpractice risks are appropriately considered and resolved. In addition to the duties set forth in the advisory opinion, both the attorney and the firm have a duty to notify all clients for whom the departing attorney provided material representation of the attorney’s departure from the firm and the clients’ options going forward. See In Re Cupples, 979 S.W.2d 932 (Mo. 1998).
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