NUMBER 403 1952

Question. I am a member of your Association and would appreciate your comments on a problem that confronts me.

After my return from the army, I formed a law partnership with an office associate, which was, after an eighteen month period, dissolved. We continued to share the same suite and our understanding was that each would continue to service his own clients.

I later removed from the suite, establishing an office on the same floor, next door to the suite occupied by my former partner. During this time, whenever I was approached by a client of my former partner, I explained to them that I would only represent them if my former partner was advised that they had retained me. Of course, under those conditions, I was not retained. These people all seemed to be of the opinion that they were free to choose their attorney from time to time, that they were “married” to no one attorney, but did not feel that they cared to let my former partner know that they were thinking of another attorney. My feeling was that I did not want to raise any question as to soliciting business from my former partner’s clients.

It now develops that my former partner has gone to Florida. I know that he bought an interest in a business there and am told that he is taking a law course to prepare himself for the Florida Bar examinations. He still maintains his law office here and has a younger brother who has just graduated from law school and taken the June Bar examination in New York, taking care of his matters.

I would like to know:

1. Is it considered ethical for a lawyer to accept a retainer from a former partner’s client, where in the dissolution of their partnership, the understanding was that each retain his own clients.

2. Is it ethical for one to accept a retainer from a former “firm client” who had been recommended by a former partner’s client.

3. Is it ethical for one to accept a retainer from a third person recommended by a former partner’s client.

4. Is it ethical for me now, knowing that my former partner cannot personally take care of legal matters in New York, to communicate with his former clients, either personally or by mail (some are out of town), and advise them that I am now’ free to accept their business.

I trust that you understand that I not only want to do the ethical thing, but have always refrained from doing anything which might hurt my former partner in any way. While he was around to take care of things, I had no problem, but now since he is away, I feel that some of the clients would rather have me take care of their matters, than a young man, not yet admitted, doing so, in his brother’s name.

Answer, As a general rule and in the absence of an agreement to the contrary, it would not be unethical for a lawyer to accept an unsolicited retainer from an individual who had been a client of a former partner or from anyone recommended by such a client. In this particular case, the basic question is what was the scope of “the understanding that each retain his own clients,” and this is not clear from the facts presented. Thus, the answers to the particular questions presented necessarily depend upon a correct interpretation and application of the understanding which was reached. However, it would be a most unusual agreement which would prohibit the acceptance of a retainer under the circumstances described in question 3.


In any case, a general communication to the former clients of the former