Can you take it with you? Maybe, if you plan ahead carefully

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Published on 3/27/06

Can a departing lawyer copy documents from files of the "old" firm?

Certainly the answer would be "no," when the departing lawyer wants to use the files to take clients from the firm he or she is leaving.

But what if the intent is more innocent, such as wanting to have a body of reference, and convenient forms, from which to commence new work for new clients in a new law firm? Or more obvious, such as files for clients who will follow you? The objections may be less obvious, but they still exist -- for several very important reasons.

  • Violation of copyright law
    Even if the work product was personally created by the lawyer, the copyright protection attaches to the documents and resides with the law firm. The principle is that of "work for hire," in which the creator has no proprietary rights. Those rights belong to the person/entity that paid for the work.

  • Knowledge Management system requirements
    Corporate clients increasingly demand Knowledge Management (KM) systems that systematically organize the firm's entire work product, prepared for all of its clients, making the collective research and advice of all lawyers available to each lawyer. Clients will no longer pay firms to reinvent the wheel, meaning that work files are no longer inert paperwork that no one will miss.

    Best practices require every firm, whether one lawyer or 1,000, to create a standard classification system for each lawyer's physical and electronic work, including correspondence, memos, forms, briefs and e-mails. Files with such organization, particularly when enhanced by shared document management systems such as iManage and Docs Open, become integrated firmwide structures. Removing one work product item is like removing a brick from a wall.

  • Client ethics
    Files and their contents always belong to the client, not the firm or a departing lawyer. You need permission from your client to move a file.

The rules and specific time periods for storing or destroying client files vary by jurisdiction. Some states, for example, require a lawyer to securely store a client's file for 10 years after completion or termination of the representation absent other arrangements between the lawyer and client.

If you know you will be making a move, some planning beforehand can alleviate some of these concerns. Prepare your own personal forms file to identify non-firm work product. Develop the list of clients that you know will be following you so that you can identify their related files.

Plan your file transfer well in advance, because when you announce your intention to leave your current firm the relationship changes immediately, and that which was readily available may no longer be. You will need to plan for the transfer of files and for their storage (active versus closed).

On balance, what is correct and what is enforced may be two different things when negotiation is involved. If a departing lawyer wants work product of any kind, I'd suggest that being up front and seeking agreement is better and always the safest bet, especially if there is any possibility of getting future referral work.

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