Breaking Up Is Hard to Do, but It Doesn’t Have to Be: Ethics Opinion Outlines Procedures for Departing Attorney’s Email Account

Natalie GrayBy Natalie Gray

On January 21, 2022, the North Carolina State Bar Council issued 2021 Formal Ethics Opinion 6, which contains guidance for firms regarding their ethical responsibilities for a departing lawyer’s email account. The entire text of the Opinion can be found here.

In the adopted ethics opinion, the lawyer was departing a firm and opening his own law practice. However, the guidance will be helpful for any firm designing a policy around email accounts for departing lawyers, regardless of whether they retire, move to a new firm, or leave the practice of law altogether. Below is a table laying out key takeaways from the ethics opinion. If you have a similar situation, you should look to the text of the opinion for elaboration and clarification on each point below.

In all of the steps below, the firm should keep in mind that they are required to provide the information necessary for clients to make an informed decision about representation by the departed lawyer, and the circumstances surrounding the departure may dictate what type of information should be included.

If you are unclear about your professional responsibilities after reviewing relevant Rules and Opinions, you may request informal advice from the ethics department of the State Bar by calling (919) 828-4620 or by emailing [email protected].

 

Steps That Firm May or Must Take with Respect to Email Account Required/Optional Description
Auto-reply message

(If there are no special circumstances surrounding the lawyer’s departure.)

 Required Auto-reply message must be added to departing lawyer’s email account.

The message must include the following:

  • Announcement of lawyer’s departure from the firm and
  • New contact information for the departing lawyer if:
    • It is appropriate to provide this information and
    • The contact information is either known or reasonably ascertainable.

The message may include the following:

  • Alternative contact at the law firm for inquiries.
Auto-reply message

(If there are special circumstances surrounding the lawyer’s departure).

 Required There may be circumstances in which the firm has a professional responsibility to do more than just provide new contact information for the lawyer in an auto-reply message. If the lawyer had a mental impairment or is under investigation for a serious ethics violation, the law firm may need to provide additional information regarding the circumstances of the lawyer’s departure.

In those circumstances, an auto-reply must include:

  • Notice of lawyer’s departure and
  • Contact at the firm for inquiries.
Duty to monitor and respond to incoming emails Required The firm has a duty to monitor the email account beyond adding an auto-reply message.

The firm should:

  • Monitor account to make sure clients are not adversely impacted.
  • Limit review of the email communications to only enough information to determine where the email needs to be directed.
Keep email account active for
a “reasonable amount of time”(Default period is 3 months)		 Required The firm should determine how long the account should remain active. The guidance suggests that a default period of time is three (3) months, but ultimately it must be for a “reasonable amount of time.”

  • The standard three-month period will vary depending on the circumstances. It may be reasonably necessary to shorten or extend this time period.
  • After a “reasonable amount of time” the auto-reply message should be removed and the account deactivated so that a sender will receive a generic “undeliverable” message.
Email account should be deactivated after “reasonable amount of time” has passed Required
  • Email account should be deactivated after “reasonable amount of time” has passed
Law firm may offer their services to former clients who contact the firm through the departed lawyer’s email account Optional
  • Former and prospective clients contacting firm through former lawyer’s email account must be given the departing lawyer’s contact information.
  • However, the law firm may offer their services as an alternative.

 

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