Comment: A Departed Partner's Liability for the Post-Departure Malpractice of Her Ex-Colleagues—A Practical Approach
Lawyers usually practice in law partnerships, and regularly, and with increasing frequency, join and depart these law firms. Commentators have only recently begun to examine the law governing the departure of partners from law firms. The purpose of this Comment is to examine one small aspect of the law governing this mobility: the post-departure liability of departed lawyers for malpractice committed by the remaining, servicing (to the client), ex-partners. The discussion will demonstrate how a too rigorous application of partnership law to the law firm situation leads to bad law. The Comment suggests that the client-law firm retainer agreement, which of course commits the firm to provide each of its clients appropriate legal services, also presumptively authorizes the law firm to manage its personnel for all its clients' best interests. The Comment further suggests that any understanding among the departed lawyer and her ex-colleagues with respect to the firm and all its clients' best interests should normally result in the departed lawyer's discharge from liability for her ex-colleagues' post-departure malpractice. This should protect all interests without placing excessive and unnecessary burdens on large law firms. Part II briefly illustrates the problem. Part III discusses important precedent establishing that the departed lawyer remains liable for the post-departure malpractice of her ex-colleagues. Part IV demonstrates how this result, which is a surprise to many commentators, is poor policy (section A), unfair to the departed lawyer (section B), and inconsistent with client expectations (section C). Part V builds on Professor Hillman's recommended solution to satisfy all interests. Part VI briefly summarizes.
Stephen E. Kalish,
Comment: A Departed Partner's Liability for the Post-Departure Malpractice of Her Ex-Colleagues—A Practical Approach,
70 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol70/iss2/5