Can a corporation condition hiring outside counsel, or in-house counsel, on the lawyer's promise never to represent anyone against the corporation in the future, even in unrelated matters?

Plain-English summary

The committee considered two questions: whether a corporation's in-house counsel may offer, or an outside lawyer may accept, an agreement that makes representation in a specific matter contingent on the outside lawyer's promise never to represent anyone against the corporation in the future, and whether in-house employment may be conditioned on the same promise. Both proposed restrictions would bar the lawyers from representing others adverse to the corporation in any matter, "even if that matter were unrelated to any representation of the corporation in which the lawyers had been involved."

The committee framed the issue as the relationship between Rule 5.6(a) (restrictions on the right to practice) and Rule 1.9 (duties to a former client). Rule 1.9 already bars a lawyer from later representing another person in "the same or a substantially related matter" adverse to a former client, but it is "not intended to be an absolute bar to representations adverse to a former client"; where the later matter is unrelated, the lawyer may proceed even against the former client. The proposed restrictions, the opinion held, sweep far past Rule 1.9 by prohibiting future adverse representations in unrelated matters, and so "run afoul of Model Rule 5.6(a)," which forbids a lawyer from participating in offering or making a partnership or employment agreement that restricts the right to practice after the relationship ends (except as to retirement benefits).

Drawing on the Comment to Rule 5.6(a), the committee identified the rule's two purposes: protecting a lawyer's "professional autonomy" and preserving "the freedom of clients to choose a lawyer." It analogized to cases voiding restrictive partnership covenants, Dwyer v. Jung and Cohen v. Lord, Day & Lord, reasoning that barring a lawyer from ever opposing a former client "would impermissibly restrain a lawyer from engaging in his profession" and would deny the public access to experienced counsel. The committee concluded that the extent to which a former client's interests still constrain the lawyer "is defined by the scope of the restriction contained in Model Rule 1.9," and a lawyer may neither ask for nor agree to any further restriction. Any agreement of the kind described "would violate the injunction of Model Rule 5.6(a)."

Currency note

This opinion was issued in 1994, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a company make hiring a lawyer conditional on a promise never to sue the company later?

A: No. The opinion concluded that a promise never to represent anyone adverse to the corporation in the future, including in unrelated matters, is an impermissible restriction on the right to practice under Rule 5.6(a).

Q: Doesn't Rule 1.9 already stop a lawyer from turning against a former client?

A: Only in part. The committee explained that Rule 1.9 bars later representation in the same or a substantially related matter, but not in unrelated matters, so an agreement reaching unrelated matters goes beyond Rule 1.9 and violates Rule 5.6(a).

Q: Why does the rule forbid these agreements?

A: The opinion identified the two purposes stated in the Rule 5.6 Comment: protecting the lawyer's professional autonomy and preserving clients' freedom to choose their own lawyer.

Q: Did it matter whether the lawyer was outside counsel or an in-house hire?

A: No. The committee applied the same conclusion to both the retainer-agreement and the in-house-employment scenarios.

Background and rules framework

The opinion interpreted Rule 5.6(a) (a lawyer shall not participate in offering or making a partnership or employment agreement that restricts the right to practice after termination of the relationship, except as to retirement benefits) and Rule 1.9 (the limited, matter-specific bar on representation adverse to a former client). The committee read the two together to hold that Rule 1.9 marks the outer boundary of permissible post-representation restraint, and that contractual restrictions exceeding it are void under Rule 5.6(a). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 5.6(a) (restrictions on the right to practice; partnership and employment agreements)
• MR 1.9 (duties to former clients; same or substantially related matter)

Cases:

• Dwyer v. Jung, 336 A.2d 498 (N.J. Super.), aff'd, 348 A.2d 208 (1975), partnership clause allocating clients on dissolution void as against public policy
• Cohen v. Lord, Day & Lord, 550 N.E.2d 410 (N.Y. 1989), forfeiture-on-competition clause improperly restricted a withdrawing partner's right to practice
• Satellite Financial Planning Corp. v. First National Bank of Wilmington, 652 F. Supp. 1281 (D. Del. 1987), substantial-relationship test under Rules 1.9 and 1.10
• Evans v. Artek Systems Corp., 715 F.2d 788 (2d Cir. 1983), disqualification for access to privileged information in a substantially related matter

Other opinions cited:

• ABA Formal Op. 93-371 (1993): a settlement restriction on plaintiffs' counsel's right to represent future claimants violates Rule 5.6(b)
• ABA Informal Op. 1301 (1975): a covenant barring a former lawyer-employee's competing employment is "undesirable surplusage"

See also

• ABA Formal Op. 00-417: Settlement terms limiting a lawyer's use of information
• ABA Formal Op. 06-444: Restrictive covenants and retirement benefits
• ABA Formal Op. 468: Facilitating the sale of a law practice

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 94-381.pdf