Center For Practice Management, Ethics, Management, Security

I Quit: Checklists for Departing Attorneys/Staff

If an attorney or support team member is terminated or quits, law firms should have a checklist of items that need to be acted on to ensure that firm and client data is not compromised and ensure client needs are met.

Offboarding Checklists

Most firms and businesses hold exit interviews. However, that is just one of many things to do when an employee departs, whether they are being terminated or voluntarily quit. The offboarding process is the reverse of the onboarding process. You should be prepared with checklists including:

_ Transfer the employee’s job responsibilities

_ Knowledge transfer (open client matters, processes the employee can document to help train other employees, outstanding tasks)

_ Remove access to systems

_ Transfer ownership/admin of domains, social media, or other firm online properties

_ Return firm/company equipment, keys, employee badges, etc.

_ Allow employees to collect and remove private property (in the case of termination this may be supervised by HR)

_ Set up auto response and forward phone and email

_ Schedule an Exit Interview (sample questions and best practices)

_ Nullify employment contracts, if applicable

_ Assist with COBRA forms, transfer of benefits, if applicable

_ Update personal address for W-2 forms

_ Payroll removal and issue final paycheck

_ Update HR records with termination letter or resignation letter

_ Update website and letterhead (if applicable)

_ Notify other employees

_ Notify clients (if applicable)

_ Update firm/company directory

This list is not exhaustive. Depending on your firm, the position, and the circumstances you may have additional offboarding processes. You should create multiple checklists to cover termination (with or without cause), position type (support, associate, partner) and other specifics to make sure the offboarding process is complete in each possible scenario.

Ethical Considerations

In 2001 Deanna S. Brocker wrote about how firms should handle a lawyer leaving a firm. She addresses client notification, client files, and legal fees. It is a fantastic primer and references the applicable Rules of Professional Conduct. In December 2019, the ABA issued Formal Opinion 489 “Obligations Related to Notice When Lawyers Change Firms”.  This opinion further expounds on lawyer and law firm management’s ethical obligations to assure an orderly transfer of client matters and the rights of the client to choose representation.

Some NC ethics opinions provide further clarification on firm’s behavior regarding departing attorneys. Written in 1995, RPC 200 responds to the permissibility of a departing lawyer’s direct contact with current and former clients, as well as if attorneys from the firm may contact the departing lawyer’s clients.

2003 FEO 11 discusses duties of a departed lawyer when dividing fees with the former firm, and 2005 FEO 13 provides clarification on return of unearned fees to the client when an attorney leaves the firm.

2006 FEO 20 requires that a law firm may not continue to use a former member’s surname in the law firm’s name if the member continues to practice law with another firm.  Another opinion that speaks to name use, 2011 FEO 9 reiterates that a firm may not use the name of a person not employed or affiliated with the firm to appear on firm letterhead.

A very recent ethics opinion issued by the NC State Bar is 2021 FEO 6 “Departing Lawyer’s Email Account”. This opinion addresses several inquiries regarding a law firm’s obligation to place an outgoing auto-reply message on a departing lawyer’s email account. The opinion suggests a firm must keep the departing attorney’s email account active and place an outgoing auto-reply message. The “Law Firm is required to take reasonable measures to protect the interests of every client, regardless of whether the client remains with Law Firm or leaves with Departing Lawyer.” The opinion also provides guidance if the attorney who is no longer with the firm left for reasons of mental impairment or ethical violations. Firms, in addition to setting up an out-of-office auto response, should keep the email account active and monitor it and provide limited response if necessary. Finally, the opinion suggests that the auto-response be maintained for a reasonable period, which is three months unless there are circumstances that would require a shorter or longer period.

For specific circumstances not covered by current RPC and opinions, contact the NC State Bar Ethics Hotline if you have any questions.

Information Technology Considerations

Law firms should have a comprehensive checklist to cover removing access from firm IT resources. A recent study from Beyond Identity found that 83% of employees continue to access accounts from a previous employer. In addition to confidentiality issues, this unauthorized access could leave a firm vulnerable to cybersecurity threats, exposure of personally identifiable information which could lead to data breaches, negatively affect the firm’s reputation, and negatively affect remaining employees.

To remove access and change permissions, a firm should have a data map in place and have controls on who has access to what. Policies, an org chart, a list of firm technology (on premise and in the cloud), and whoever has administrative rights all should be in place so that a firm doesn’t find out too late a former employee is engaged in malfeasance.

Tools like enterprise password managers, 2FA (MFA) through a password manager or physical device issued by the firm versus using an employee personal mobile phone, mobile device management for firms that allow employees to “Bring Your Own Device”, asset tags for hardware, and other tools that let the firm remove access, change passwords, and disable devices will ensure that an employee will no longer have access to firm resources. Don’t forget to change the firm’s Wi-Fi password too!

Firms should proactively control access to IT resources. Trying to figure out how to stuff the genie into the bottle after an employee has been terminated or quits with no notice is exceedingly difficult. Consider some of the suggestions in these articles, focusing on scenarios that include departing employees:

Looking for a start on your checklist? PracticePro from the Lawyers’ Professional Indemnity Company has a great start on an employee departure checklist with a focus on Information Technology. Contact your IT department, consulting firm, or managed IT provider to get their help on what should be included in your list, and what vulnerabilities you may have.

Conclusion

Call it the Great Resignation or the Great Reshuffle, law firms are not immune to the trends. Departing employees or attorneys cause disruption in a firm, even under the most amicable of circumstances. It is best to be prepared so that you can make the transition as seamless as possible. Implementing firm process documentation, cross training, project management tools, practice management applications, and reducing silos will help the firm recover from staff departures. An offboarding procedure and termination checklist will help ensure that your firm can move on safely and ethically.