The legal profession and legal support industry is highly mobile, so staff departures are inevitable. Our professional duties apply to the transition of all employees, and departing solicitors owe reciprocal duties of candour and honesty.
The contract of employment between the employee and the legal practice should expressly cover their eventual departure; for employed solicitors (and conveyancers) this should include whether the departing solicitor may contact the legal practice’s clients, former clients and/or referrers.
While no express prohibition on such contact exists in law, it may be proscribed by a reasonable restraint of trade.
In the absence of any agreed arrangements (by employment contract or otherwise), the departing solicitor should avoid initiating contact with the practice’s clients and referrers.
The law practice
The solicitor/client retainer is generally between the legal practice and the client, not the individual solicitor.
The principal(s) of the legal practice should consider their obligations under s 308(4)(h) Legal Profession Act 2007 (Qld) as to whether updated disclosure is required to notify the client of any change to details of the person whom the client may contact to discuss their matter or the legal costs.
At the request of the client, the practice should provide the contact details of the departed solicitor if the practice has been given those details. The practice should not impede a request by a client to transfer their matter to a departing solicitor (subject to the exercise of an effective lien).
No member, officer or employee of the practice should give misleading information about the future practice details of the departing solicitor, nor reasons/circumstances surrounding the departure.
Practitioners are reminded it is part of our duty of courtesy and honesty to keep details of team members on websites up to date, or to advise clients of important staff changes.
From a security perspective, it is quite usual to request departing staff members to deliver all keys and swipe cards, or to reset biometric entry codes upon their departure.
Similar measures should be taken to secure the legal practice’s IT infrastructure. The employment agreement should specify return of firm laptops and phones, and removal of client information from devices owned by the departing staff member.
As the party responsible for secure data storage under the Privacy Act 1988 (Cth) and the Australian Solicitors Conduct Rules,1 it is appropriate for the law practice to request reasonable confirmation that confidential or “Personally Identifiable Information” has been deleted. In most cases written assurance or a declaration would be sufficient.
The former employee’s access to legal practice management systems and email should be promptly removed, an auto-forwarder and/or auto-responder on the email account may be appropriate for a short amount of time to ensure all communications are received by the legal practice, and that parties who were dealing with the employee have time to update their contact list.
The departing staff member
The departing staff member should not take the client contact details, contents of a client’s file, nor a copy of that file (digital or otherwise), without the consent of the practice and the express authorisation of the client.
The departing employee should not take firm precedents or other intellectual property, even if created by them during the course of their employment, without the consent of the legal practice.
A departing solicitor should not mislead clients into believing they have an obligation to leave with the solicitor or instruct that solicitor in the future.
Neither the departing solicitor nor the legal practice should make any disparaging remarks of the other to any client.
For a profession based on the values of candour and honesty, nothing but rancour and reputational damage can be gained by spitefully refusing to pass on the details of a departed solicitor, or allowing a website or social media page to reflect a false state of affairs. Prudent and truly professional practitioners will avoid this state of affairs.
Practitioners are referred to the following resources for further guidance:
- The importance of appropriately communicating staff departures
- Managing firm departures
- Best practice protocol for the conduct of legal practices and solicitors leaving legal practices
Footnotes
This is an adaptation of the New South Wales Law Society’s Best Practice Protocol for the Conduct of Legal Practices and Solicitors Leaving Legal Practices (Guide, 18 June 2015).
1 Queensland Law Society, Australian Solicitors’ Conduct Rules (at 1 June 2012).
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