Law Firm’s Non-Solicitation Agreement Restricts Mobility of Departing Partner
A recent legal ethics opinion from North Carolina provides interesting insight into the ethics of a non-solicitation agreement between law firms that restricts attorney mobility but not necessarily a client’s choice of counsel.
The North Carolina 2017 Formal Ethics Opinion No. 5 analyzed the issue of whether two law firms could enter into a non-solicitation agreement with respect to each other’s employees as part of their merger talks. In the proposed contractual provision, Law Firm A agrees not to induce or solicit any partners, associates or other employees of Law Firm B to join Law Firm A (and vice-versa), for the duration of the merger talks and for a period of two years following the merger discussions. The rationale for the provision was “to foster the trust necessary for both firms to disclose financial information about the productivity of the lawyers in the firms without fear that, should the merger negotiations be abandoned, the other firm would attempt to lure highly productive lawyers or ‘rainmaker’ lawyers away from the other firm” (See Opinion.) More
Law Firm Can’t Require Departing Partner to Forfeit Equity If Partner Takes Clients
In an important order that impacts the field of partner departures nationwide, a district court judge in the the Eastern District of Virginia held that a provision in a law firm’s operating agreement that provides that a withdrawing partner who “takes clients” forfeits up to fifty percent of his equity in the firm is void and unenforceable because it places an impermissible restriction on the partner’s right to practice law. (Moskowitz v. Jacobson Holman, PLLC, (E.D. Va. Jan. 28, 2016.)
The Court’s ruling was based on Rule 5.6 of the District of Columbia Rules of Professional Conduct, which prohibits lawyers from placing restrictions on the right to practice law, and is modeled on the ABA Model Rules. Versions of this rule have been adopted in every state, except California, although California has its own Rule of Professional Conduct which prohibits “agreements restricting a member’s practice” in certain circumstances. (See California Rules of Professional Conduct, Rule 1-500.) More
Partner Departures and Golden v. California Emergency Physicians Medical Group: Does California’s Business and Professions Code § 16600 Void Any Partnership Provision that Restricts a Departing Partner’s Right to Compete?
The Ninth Circuit’s recent decision, filed April 8, 2015, in Golden v. California Emergency Physicians Medical Group (9th Circuit) Case No. 12-16514, has potentially far-reaching implications for what is deemed to be an unlawful professional restraint in violation of California’s Business and Professions Code § 16600. In closely examining the statute, the Ninth Circuit concluded that the reach of § 16600 does extend far beyond non-compete provisions to every contract restraining someone from “engaging in a lawful profession, trade or business.” With respect to partner departures, some restrictions contained in partnership agreements in anticipation of dissolution or partner departure are excluded from this rule by Section 16602. However, even non-compete agreements between partners, and other contractual provisions that have a similar effect, may be unenforceable if they impose any restrictions on a partner’s right to practice law not contemplated by Section 16602. More
According to the California Supreme Court in Edwards v. Arthur Andersen, There is No “Narrow Restraint” Exception to General Rule Voiding Noncompetition Agreements
As a general rule under California law, contracts that restrict or penalize competition among former employees and employers are void and unenforceable under Business & Professions Code Section 16600. In Edwards v. Arthur Andersen, the California Supreme Court examined the issue of whether or not there was a “narrow restraint” exception to this general rule, which would allow a contractual provision to be valid and enforceable when a party is “barred from pursuing only a small or limited part of the business, trade or profession.” The California Supreme Court held that there was no such exception to the unambiguous and undiluted language of Section 16600 and that any such restraints on an employee’s right to pursue his/her trade or business are invalid and unenforceable. (See Edwards v. Arthur Andersen (2008) 44 Cal.4th 937.) More
California Supreme Court and Non-Compete Provisions in Partnership Agreements: Howard v. Babcock Holds that Partners Imposing a Reasonable Toll on Departing Partners who Compete with the Firm is Enforceable
Prior to considering departing from an existing partnership, a partner needs to give careful consideration and analysis to any non-compete agreement or restrictions on his/her right to practice law imposed by the existing partnership agreement. Understanding these types of provisions and their potential enforceability can properly shape a departing partners strategy for departure and help to minimize risk and potential liability when the departing partner leaves the existing firm. More