Ethics Opinion 1221

Ethics Opinion 1221

4.7.2021

By Ethics Opinions

Topic: Lawyer reaching out to former clients

Digest: A lawyer who has changed law firms may contact clients she represented for estate
planning purposes at her previous firm, may inform or remind these former clients that
she has joined a new firm, and may offer to review their estate planning. Such
communications are not advertisements and therefore are not subject to the advertising
provisions in Rule 7.1 or the solicitation provisions in Rule 7.3, but they are subject to the
more general provisions in Rule 8.4(c) forbidding misrepresentation.

Rules: 1.0(a), 7.1, 7.3, 8.4(c)

FACTS
1. The inquirer formerly worked at a law firm as an attorney practicing in the elder law area.
After notifying the firm that she would be leaving to join another firm, the inquirer sent notice of
her impending departure to approximately 1,100 of her current and former clients, most of whom
were elderly or disabled. That notice, approved by the firm she was leaving, included a “Client
File Retention/Transfer Instruction” form, also approved by the firm, that provided the clients with
three options: (1) remain at the inquirer’s old firm; (2) follow the inquirer to the new firm and have
the client file and unused client funds transferred to the new firm; or (3) request that the file and
unused client funds be returned to the client.

2. Shortly after the inquirer’s departure, a number of clients who she had been representing
advised her that they wished to follow the inquirer to her new firm, and they provided the inquirer
with the appropriately completed and signed Client File Retention/Transfer Instruction making
that election. The inquirer also received word from dozens of other former clients who advised her
that they, similarly, had elected to follow the inquirer to her new firm but had sent their completed
and signed Client File Retention/Transfer Instruction to her former firm.

3. The inquirer states that despite her repeated requests over a period of several months, her
former firm has not provided her with a list of the clients who have notified the former firm of
their election to follow the inquirer to her new firm, and her former firm also has not forwarded
their files or transferred their funds. The inquirer notes that many of her elderly or disabled former
clients do not have the technical capability to locate her or her new law firm through an online
search.

QUESTION
4. May the inquirer reach out and contact directly the clients she represented at her former
firm to remind them that she has joined a new firm and to offer them the opportunity to review and
update their estate plans?

OPINION
We note at the outset that this inquiry raises issues of contract and partnership law. Our
opinion does not address those issues because they are questions of law and are, therefore, beyond
the jurisdiction of this Committee. See, e.g., N.Y. State 1134 ¶ 6 (2017). Furthermore, the
Committee only addresses the conduct of an inquirer. Therefore, this opinion does not address the
conduct of the lawyers in inquirer’s former firm.

6. As a purely ethical matter, the inquirer may reach out and directly contact the clients she
represented at her former firm to remind them that she has joined a new firm and to offer them the
opportunity to review and update their estate plans. This communication would not violate the
rules governing advertising and solicitation because it would be neither an “advertisement” nor a
“solicitation” as those terms are defined in the Rules of Professional Conduct (the “Rules”).

7. The term “advertisement” is defined in Rule 1.0(a) as follows:

8. Although Rule 1.0(a) excludes “existing clients” but not former clients, the Rules have
been interpreted to exclude former clients as well in some circumstances. Rule 7.1, Cmt. [7] says:
“Communications to former clients that are germane to the earlier representation are not
considered to be advertising.” See also N.Y. State 1129 ¶ 8 (2017); N.Y. State 848 ¶ 11 (2011);
see also N.Y. County 748 (2015); N.Y. City Bar 2015-7 (2015); see generally Rule 7.1, Cmt. [6]
(“Not all communications made by lawyers about the lawyer or the law firm’s services are
advertising.”).

9. Nor would the inquirer’s communication to her former clients be a “solicitation.” Because
“[a]ll solicitations… are advertisements with certain additional characteristics … [b]y definition,
a communication that is not an advertisement is not a solicitation.” Rule 7.3, Cmt. [1]. Therefore,
communications by a lawyer to former clients that are germane to the lawyer’s earlier
representation of such former clients are not subject to the advertising provisions in Rule 7.1 or
the solicitation provisions in Rule 7.3. See N.Y. State 1129 ¶ 18. In any event, even if Rule 7.3
applied, it expressly does not prohibit solicitations to a former client. See Rule 7.3(a) (“A lawyer
shall not engage in solicitation: (1) by in-person or telephone contact, or by real-time or interactive
computer-accessed communication unless the recipient is a close friend, relative, former client or
existing client”) (emphasis added).

10. In N.Y. County 679 (1990), the Committee specifically addressed the word “germane,”
stating:

11. The inquirer’s communications to her former clients, of course, must be truthful. As Rule
8.4(c) states: “A lawyer or law firm shall not … engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.” See also Comment [6] to Rule 7.1 (“All communications by lawyers,
whether subject to the special rules governing lawyer advertising or not, are governed by the
general rule that lawyers may not engage in conduct involving dishonesty, fraud, deceit or
misrepresentation, or knowingly make a material false statement of fact or law.”); N.Y. State 1184
¶ 11 (2020).

12. The inquirer’s proposed communications, which are germane to her earlier representations
of the former clients she seeks to contact, are therefore permissible, and are not governed by the
rules governing advertising or solicitation, but are subject to the more general provisions of Rule
8.4(c).

CONCLUSION
13. A lawyer who has changed law firms may contact clients she represented for estate
planning purposes at her previous firm, may inform or remind these former clients that she has
joined a new firm, and may offer to review their estate planning. Such communications are not
advertisements and therefore are not subject either to the advertising provisions in Rule 7.1 or to
the solicitation provisions in Rule 7.3, but the communications are subject to the more general
prohibition against “misrepresentation” in Rule 8.4(c).

(03-21)