Departing lawyer copies firm’s documents

The question was asked: Can a departing lawyer copy documents from files of the “old” firm?

There may be consensus that that is not appropriate where the objective of the departing lawyer is to take clients from the firm as he/she leaves.

There is less agreement where there is not “some other nefarious purpose” such as seeking to have a body of work, form files, from which to commence new work for new clients in the new law firm.

The “other nefarious purpose,” however, relates to violation of copyright law. Even if the lawyer created the product himself, the copyright protection attaches to the documents and resides with the law firm … analogous to “work for hire” in which the creator has no proprietary rights. Those rights belong to the person/entity that paid for the work.

Stealing the client need not be the issue, but “stealing” the work product of the firm is …

And there is another perspective: “The file and its contents always belong to the client, and neither the firm or a departing lawyer. You need permission from your client to move the file…I personally think you can keep a copy, but you would not have property or intellectual property rights attached to it since the work product belongs to the client.” Joan M. Swartz

What is correct and what is enforced, however, may be two different things … and the suggestion that agreement and being up front is better and always the safest bet, especially if there is any possibility of getting future referral work.


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