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What Can Lawyers Take with Them Other Than People?

By Wayne N. Outten and Cyrus E. Dugger

Many articles have highlighted the increasing trend of attorney mobility. See, e.g., Robert W. Hillman, The Property Wars of Law Firms: Of Client Lists, Trade Secrets and the Fiduciary Duties of Law Partners, 30 Fla. St. U. L. Rev. 767 (2003). In the midst of this changing landscape, however, lawyers are confronted with ethical obligations originally formulated during an era when lawyers, and particularly partners, were much less likely to leave their firms. Compounding the challenges confronting lawyers who wish to leave is that, in addition to a review of state ethics rules, they also might need to consider partnership law, agency law, trade secret law, tortious interference/unfair competition law, and property law.

While many of these issues have been addressed in recent literature, the focus has generally been on how and when a lawyer should inform the firm and clients that she is departing, and how and when she can solicit the firm's current or former clients or the firm's employees, all in the context of the general primacy of the client's interests during the lawyer's transition. See, e.g., Wayne N. Outten, Advising and Representing Law Firm Partners, National Employment Lawyers Association, Oct. 4, 2011; but see Hillman; Allison D. Rhodes, Client Files in the Digital Law Practices: Rethinking Old Concepts in an Era of Lawyer Mobility, UC Davis Legal Studies Research Paper Series, December 2010; Douglas R. Richmond, Yours Mine and Ours: Law Firm Property Disputes, 30 N. Ill U. L. Rev. 1 (2009). An important missing piece of this discussion is the departing lawyer's entitlement to electronic and hard copy documents created during the lawyer's time with the firm.

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