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Departing Partners: Duties and Pitfalls

By Debra Raskin

A modern day fixture of the law firm is the revolving door. See Graubard Mollen Bannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 114 (1995). As Chief Justice Rehnquist has observed: '[i]nstitutional loyalty appears to be in decline. Partners in law firms have become increasingly 'mobile,' feeling much freer than they formerly did and having much greater opportunity than they formerly did, to shift from one firm to another and take revenue-producing clients with them.' Justice William H. Rehnquist, 'The Legal Profession Today,' 62 Ind. L.J. 151, 152 (1986/1987). The increasing frequency with which partners leave law firms for new ones raises many issues concerning the permissibility of a withdrawing attorney's conduct regarding client/attorney solicitation, removal of client files or other documents and breach of anti-competition clauses in partnership agreements. In addition to adherence to the professional ethical rules, a partner is subject to a fiduciary duty to his firm and is thus constrained by such duty throughout the life of the partnership. See Gibbs v. Breed, Abbott & Morgan, 271 A.D.2d 180, 184-85 (N.Y. App. Div. 2000).

Law partners are bound to their firms by a fiduciary duty requiring 'the punctilio of honor the most sensitive.' Graubard, 86 N.Y.2d at 118 (quoting Meinhard v. Salmon, 249 N.Y. 458, 464 (1928)). Law partners are similarly bound as fiduciaries to their clients. These dual duties can come into conflict in a myriad of ways when a partner simultaneously wishes to exercise his or her right of unrestricted job mobility and look out for the best interests of his client.

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