New Opinion on Lawyer Employment Agreements

March 4, 2015

In February the D.C. Bar Legal Ethics Committee published Opinion 368, "Lawyer Employment Agreements—Restrictions on Departing Lawyer Who Competes With Former Firm." The opinion examines D.C. Rule 5.6(a), which governs a lawyer's ability to make or participate in agreements that include provisions restricting a lawyer's right to practice, and concludes that a law firm may not provide for or impose liquidated damages on a lawyer who, after departure, competes with the firm.

The opinion also declares that a firm may not restrict a departed lawyer's subsequent professional association or affiliation with partners or employees of the firm except for activity that is subject to legal limitations outside the D.C. Rules of Professional Conduct.

Additionally, the opinion includes a discussion of whether a choice of law provision in a partnership or employment agreement can avoid application of D.C. Rule 5.6(a), and determines that the answer, under Rule 8.5(b)(2), usually will depend on the location in which the departing lawyer principally practices.

View the full text of the opinion.