通知內容

所謂之現當事人(Current Client)，即指該當事人之案件現正進行中，而當事人由 該律師所代理，或該律師對於法律服務之提供扮演主要角色之情形²⁶⁹。

(二) 有義務通知現當事人

本意見指出，對現當事人作離職通知，乃一種義務。理由為何? 即前述本意見 前言所提及之當事人權利保障。具體言之，律師即將離職之資訊，為會影響現當事 人事件進行狀況之資訊，故依專業行為模範規則第 1.4 條第 a 項，律師有義務告知

270；另外，律師即將離職、去何處就職之資訊，能幫助現當事人決定其事件繼續由 該離職律師處理、留給原事務所處理抑或轉由第三事務所處理，乃協助當事人行使 選擇律師權利之重要資訊，故依第 1.16 條第 a 項第 3 款、第 1.16 條第 d 項，有義務 告知。又為充分保障現當事人之權利，不論是離職律師或是原事務負責之成員 (responsible members of the law firm)，皆為通知義務人²⁷¹。

(三) 符合招攬之例外規定

本意見指出，由於現當事人與離職律師有「現在專業關係」(present professional relationship)，故對其做通知，並不違反專業行為模範規則第 7.3 條第 a 項之規定²⁷²。

(四) 通知內容

關於通知內容，本意見指出：

1.通知對象為離職律師對現正進行中之事件(active matters)，負直接專業責任之人(即 現當事人²⁷³)；

2.不得促使當事人斷絕與律師事務所之關係，但得指出自己有意願以及能力繼續負

269 “[C]lients for whose active matters she currently is responsible or plays a principal role in the current delivery of legal services (sometimes referred to in this Opinion as “current clients” id.

270 “The impending departure of a lawyer who is responsible for the client's representation or who plays a principal role in the law firm's delivery of legal services currently in a matter (i.e., the lawyer's current cli- ents), is information that may affect the status of a client's matter as contemplated by Rule 1.4. A lawyer who is departing one law firm for another has an ethical obligation, along with responsible members of the law firm who remain, to assure that those clients are informed that she is leaving the firm” id.

271“Because a client has the ultimate right to select counsel of his choice, information that the lawyer is leaving and where she will be practicing will assist the client in determining whether his legal work should remain with the law firm, be transferred with the lawyer to her new firm, or be transferred elsewhere” id.

272 “Because she has a present professional relationship with her current clients, a departing lawyer does not violate Model Rule 7.3(a) by notifying those clients that she is leaving for a new affiliation.” id.

273 “the notice should be limited to clients whose active matters the lawyer has direct professional responsibility at the time of the notice (i.e., the current clients)” id.

責該案件²⁷⁴； indicate the lawyer's willingness and ability to continue her responsibility for the matters upon which she currently is working” id.

275 “[T]he departing lawyer must make clear that the client has the ultimate right to decide who will complete or continue the matters” id.

276 “[T]the departing lawyer must not disparage the lawyer's former firm” id.

277 “[P]referably should confirm the conversations in writing so as to memorialize the details of the communication and her compliance with Model Rules… 7.1.” id.

278 “If the client requests further information about the departing lawyer's new firm, the lawyer should provide whatever is reasonably necessary to assist the client in making an informed decision about future representation, including, for example, billing rates and a description of the resources available at the new firm to handle the client matter” id.

279 “The lawyer does not violate any Model Rule in notifying the current clients of her impending departure by in-person or live telephone contact…. so long as the lawyer also advises the client of the client's right to choose counsel and does not disparage her law firm or engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation.” id.

280 “ Far the better course to protect clients' interests is for the departing lawyer and her law firm to give joint notice of the lawyer's impending departure…to the current clients.” id.

281 “When the departing lawyer reasonably anticipates that the firm will not cooperate on providing such a joint notice, she herself must provide notice to those clients for whose active matters she currently is responsible or plays a principal role in the delivery of legal services, in the manner described above, and preferably should confirm the conversations in writing so as to memorialize the details of the communication and her compliance with Model Rules 7.3 and 7.1.” id.專業行為模範規則 7.1 條適用於所 有律師與當事人間之溝通，本意見主要指遵守 1989 年 7.1(a)不得為不實或引人錯誤之陳述之規定。

至於 7.3 條主要指 1989 年 7.3(c)之規定，該條指書面或預錄語音通訊都必須在信封外標名廣告用物 字樣，預錄語音通訊也必須在開始或結束時向民眾表明屬於廣告資訊。

(六) 通知時點:

至於離職通知之時點，本意見認為，不限將離職意圖告知事務所後，才能對現 當事人作離職通知。本意見認為律師與該事務所負責之成員(responsible members of the firm)，應「及時」通知現當事人²⁸²。本號意見指出「若律師有告知當事人其選

282 “Both the lawyer who is terminating her association with a law firm to join another and the responsible members of the firm who remain have ethical obligations to clients for whom the departing lawyer is providing legal services. These ethical obligations include promptly giving notice of the lawyer's impending departure to those current clients on whose matters she actively is working.” id.

283 此部分原文，參見前揭註 279.

284 “[F]or whom the lawyer has performed significant professional services while at the firm” ABA FORM OP. 414.

285 “A lawyer does not have a prior professional relationship with a client… solely by having worked on a matter for the client along with other lawyers in a way that afforded little or no direct contact with the client.” id.

286 “ Far the better course to protect clients' interests is for the departing lawyer and her law firm to give joint notice of the lawyer's impending departure to “ all clients” for whom the lawyer has performed significant professional services while at the firm…” id.

287 “The departing lawyer nevertheless may contact the client through written or oral recorded communication …subject to the limitations in Rules 7.1, 7.3(b), and 7.3(c)…” id.

(四) 通知方式

依第 7.3 條招攬之規定，對此種當事人之通知之方式應不以書面為限²⁸⁸。