Portability in Toronto is a professional rule before it is a compensation model. Rule 3.7-7A of the Law Society of Ontario's Rules of Professional Conduct, in the block the complete rules mark as new in June 2017, applies when a lawyer leaves a law firm to practice elsewhere. The lawyer and the lawyers who remain must give affected clients reasonable notice that the lawyer is departing, tell them their options for retaining counsel, and take reasonable steps to get each client's instructions. An affected client is a client for whom the firm has a current matter on which the departing lawyer has conduct or substantial responsibility. Commentary says the client's interests are paramount, and that the client should be free to decide without undue influence from either side. The three options are to go with the departing lawyer, stay with the firm where that is possible, or retain someone else. A joint notice is preferred. If the two sides cannot agree who sends it, both send it. If the client follows the lawyer, the instructions should include written authorization to transfer the file and client property. The Law Society's leaving-a-firm guide states the same rule in shorter form: clients are not the property of a firm or a licensee.
Commentary paragraph 6 tells the lawyer to give the firm such notice as is reasonable in the circumstances before clients are told. The rules do not convert that sentence into a number of weeks, a garden-leave statute, or a maximum. Garden leave, a notice period of several months, and a non-solicit of staff are whatever the partnership agreement actually says. A hiring committee that inserts "90 days, market" into a start-date memo is writing a number the Law Society did not publish. The 3 firm-side files that could not verify origination inside 60 days were waiting on client-level evidence, not on a statutory notice table. Rule 3.7-7B, in the same June 2017 block, says Rule 3.7-7A does not apply when the lawyer is leaving government, a Crown corporation, another public body, or a corporation that employs the lawyer as in-house counsel. A partner joining a company is outside this rule. That search is the Toronto in-house brief.
Solicitation has a second rule, and it bites before the client letter goes out. Rule 4.1-2(d), amended in February 2017 and again in April 2017, says a lawyer shall not use means intended to influence a person who has retained another lawyer or paralegal for a particular matter to change that representative, unless the change is initiated by the person or by that representative. A partnership non-solicit and this rule point the same way. The client starts the move. A lateral plan that has the new firm calling the old firm's live files, before the joint letter and before the client's own instruction, is a professional problem, not a business-development tactic. Across one cohort of 250 structured interviews with Toronto partners and counsel, over a 24-month window, 52 of 80 partners who had changed firms in the prior six years said the joint client letter decided which files moved. The 80 are one cut of that cohort. They are not added to any other cut below.
Conflicts travel with the lawyer even when the client does not. Rules 3.4-17 to 3.4-23 govern a transfer between law firms. The commentary, amended June 2015, cites MacDonald Estate v. Martin, 1990 CanLII 32, [1990] 3 S.C.R. 1235. The purpose of the rule is actual knowledge, not imputed knowledge of everyone in a large firm. The commentary still says the inference is that lawyers working together share confidences, so actual knowledge may be presumed, and that the presumption can be rebutted by clear and convincing evidence that reasonable measures were taken to prevent disclosure. A Toronto lateral is not cleared because the pitched book looks portable. It is cleared when the new firm can show the screen, or when it declines the matters the screen cannot cover. Rule 3.3-7 allows a limited disclosure of confidential information to detect conflicts from a change of employment, and only once substantive discussions about the new relationship have occurred, and only if privilege is not compromised. That is the conflicts pass. It is not permission to circulate a client list.
The non-compete statute is the document hiring committees misread. Effective 25 October 2021, Ontario's Employment Standards Act prohibits an employer from entering an employment contract, or any other agreement with an employee, that includes a non-compete. The Ministry guide, updated 8 July 2024, defines that agreement as one between an employer and an employee that prohibits the employee, after the employment ends, from engaging in business that competes with the employer. A time limit or a geographic limit does not take the clause outside the definition. The prohibition covers agreements made before the job starts, during it, and after it ends. Agreements made before 25 October 2021 are outside the prohibition and remain a common-law question. Two exceptions are written into the statute. One is a sale or lease of a business, or part of a business, operated as a sole proprietorship or a partnership, where immediately after the sale the seller becomes an employee of the purchaser and the non-compete is part of that sale. The other is an executive: chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer, chief corporate development officer, or any other chief executive position. Chief legal officer is on the list. Managing partner, income partner, and partner are not.
The same guide says the Act prohibits non-competes and does not prohibit non-solicit agreements or non-disclosure agreements. Substance controls the heading. A clause titled non-competition that only stops the person contacting customers is a non-solicit. A clause titled non-solicit that stops the person practicing law in Toronto is a non-compete. An equity partner's covenant sits in a partnership agreement. The Ministry's definition is employer and employee. A committee that treats every partner covenant as void on 25 October 2021 is reading an employment ban onto a deed the guide does not describe. An income partner, a counsel, or an associate on an employment contract is inside the employee frame unless an exception applies. Where the statute does not void the clause, the common-law test is still Elsley v. J.G. Collins Insurance Agencies, 1978 CanLII 7, [1978] 2 S.C.R. 916, as applied by the Court of Appeal in H.L. Staebler Co. v. Allan, 2008 ONCA 576. That court held that a non-solicitation clause is normally sufficient to protect the employer's interest, and that a non-competition clause is warranted only in exceptional circumstances. The Staebler clause, which barred conducting business with former clients and had no geographic limit, was unenforceable. A law-firm non-solicit still has to live with Rule 3.7-7A and Rule 4.1-2(d). A commercial case does not let a partnership assign a client.
