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Unfair business practices claims, such as breach of fiduciary duty, business conspiracies and tortious interference, have not usually been asserted by law firms against their prior attorneys or the law firms where their prior attorneys subsequently go to work. Among the several possible reasons for this rarity is that there are Ethical Rules governing the attorney-client relationship that limit the amount of protections that a law firm can enact compared to other business types to protect against clients leaving to work with the departing person. Thus, for example, Virginia attorneys cannot be a party to a noncompete agreement, agreeing not to compete against their prior employer.

There is an open legal question then about how fidicuiary and other common law duties will be applied to attorneys. A recent lawsuit filed in Richmond may help answer this question.

This past October, a law firm filed tort claims against two lawyers who previously worked at the firm. The complaint alleges that the two lawyers conspired together to lure current and prospective clients to their new firm, away from the plaintiff’s firm, while they were still employed by the plaintiff. The complaint also claims the defendants used resources of the plaintiff firm, such as cell phones and computers, to contact plaintiff’s clients and carry out their deceptive plan.

Plaintiff also alleges defendants used their position in the firm to access client information. A text message from one defendant to another allegedly states “now that you or [sic] in the inner circle can you get that ss that shows who file what (like other lawyers)?”

Importantly, the complaint states that although defendants were attorney of record for many clients they had limited contact with the clients and were not the primary attorneys on the case. Thus, if defendants try to argue that they were simply taking their own clients with them when they left, the court may question this explanation.

It will be interesting to see how the Richmond Circuit Court treats this case. Especially given the general principle that clients should be free to choose whatever lawyer they want. One question is whether the defendants will be able to get the case dismissed without a trial or whether the court will allow the case to go to trial.

Read the complaint and answer.