Can a Colorado lawyer agree to a non-compete, anti-poaching, or broad confidentiality clause in a partnership or employment agreement?

Plain-English summary

Colorado RPC 5.6(a) bars a lawyer from making or offering a "partnership, shareholders, operating, employment, or other similar type of agreement" that restricts the right to practice after the relationship ends, except an agreement about retirement benefits. Opinion 151 supplies the operative test: a provision violates Rule 5.6(a) if it interferes with a lawyer's exercise of independent judgment on behalf of other clients to an extent greater than that of a similarly situated lawyer who does not sign the agreement. The Committee draws that standard from its earlier Opinion 92 on settlement restrictions and applies it across several covenant types. Any private agreement that restricts a lawyer from practicing more than the Rules already do violates Rule 5.6(a); an agreement that restricts no more than the Rules do does not.

On covenants not to compete, the opinion follows Johnson Family Law, P.C. v. Bursek and concludes the Rule "plainly forbids any agreement that would entirely prohibit a lawyer from practicing law after departure from a firm." Financial disincentives are treated the same way: an undifferentiated per-departing-client fee violates the Rule, and provisions that forfeit compensation for competing, or that pay extra for not competing, are prohibited because their effect is the same as a direct bar. Rule 5.6(a) reaches in-house employment agreements, so an in-house lawyer may not agree to a blanket prohibition on later working for a competitor. By contrast, a term that only restricts representation already barred by Rule 1.9(a), or that limits a lawyer's purely non-legal (non-"law-related") activities under Rule 5.7, does not restrict the right to practice and is permitted.

The opinion extends the same analysis to anti-raiding clauses (a lawyer generally may not agree not to solicit a former firm's lawyers, paraprofessionals, or licensed legal paraprofessionals, though restrictions on soliciting a current employer's staff and on purely non-legal employees may be permissible), and to confidentiality provisions. A confidentiality clause that tracks Rules 1.6 and 1.9(c) is fine, but one broader than those Rules, for example barring use of general legal knowledge, witness-preparation strategy, vendor lists, or disclosure of the lawyer's own client representations and experience, restricts the right to practice and violates Rule 5.6(a). Provisions requiring a lawyer to disclose a prospective employer's identity can violate the Rule when they force a disclosure barred by Rule 1.6(a). The Committee also addresses two safe harbors it had recognized before: placement-agency fees paid by a hiring employer (Opinion 105) do not violate the Rule, and a savings clause that genuinely limits an agreement to conduct permitted by the Rules can cure an otherwise ambiguous covenant, though it cannot rescue a provision with only one, violative, reasonable reading.

In practice

Under this opinion, whether a covenant in a Colorado lawyer's partnership or employment agreement is permissible turns on a single comparison: does it restrain the lawyer's independent judgment for other clients more than the Rules of Professional Conduct already do? The Committee applies that test to conclude that flat non-competes, pay-not-to-compete and fee-forfeiture terms, undifferentiated per-client departure fees, lawyer anti-raiding clauses, and confidentiality or disclosure terms exceeding Rules 1.6 and 1.9 violate Rule 5.6(a), while retirement-benefit conditions, restrictions confined to non-legal activity under Rule 5.7, terms mirroring Rule 1.9(a)'s conflict bar, placement-agency fees, and effective savings clauses do not. The opinion notes that the Rules are not themselves a basis for civil liability, that the Colorado Supreme Court has held a contract violating Rule 5.6(a) (such as a per-departing-client fee) unenforceable as against public policy, and that knowingly entering such an agreement intending to later disclaim it can be misconduct under Rule 8.4(c). It also cautions that separate state and federal law may independently render restrictive covenants unenforceable.

Common questions

Q: Can a Colorado law firm make a departing lawyer pay a fee for each client who follows the lawyer?

A: No, where the fee is undifferentiated. Following Bursek, the opinion concludes an undifferentiated fee assessed for each client who chooses to follow a departing lawyer violates Rule 5.6(a), because it forces lawyers to decide whether a client is "worth" retaining. The opinion leaves open narrow reimbursement of specific costs the firm actually advanced for a client.

Q: I am in-house counsel. Can my employer make me sign a non-compete?

A: Not a blanket one. The opinion states Rule 5.6(a) applies to employment agreements between a corporation and its in-house lawyer, so an in-house lawyer may not agree to a term such as a blanket prohibition on later working for a competitor. A restriction confined to non-legal work, like research and development, may be permissible.

Q: Are confidentiality clauses in lawyer employment agreements allowed?

A: Yes, if they do not exceed Rules 1.6 and 1.9(c). The opinion concludes a confidentiality provision that tracks those Rules is permissible, but one that is broader, for example barring the use of general legal knowledge or the disclosure of the lawyer's own representations and experience, restricts the right to practice and violates Rule 5.6(a).

Q: Does a "savings clause" saying the agreement complies with the Rules fix an otherwise improper covenant?

A: Sometimes, but not always. The opinion concludes a savings clause can save an agreement that is merely ambiguous about the scope of legal versus non-legal activity, but it cannot rescue a provision whose only reasonable interpretation violates Rule 5.6(a).

Q: If a restrictive covenant violates Rule 5.6(a), is it automatically unenforceable in court?

A: The Committee takes no position on civil enforceability generally, noting the Rules are not designed as a basis for civil liability, but it observes that the Colorado Supreme Court held in Bursek that a contract violating Rule 5.6(a), such as a per-departing-client fee, is unenforceable as a matter of public policy.

Background and rules framework

The opinion interprets Colorado RPC 5.6(a) (Model Rule 5.6(a)), which prohibits offering or making partnership, shareholder, operating, employment, or similar agreements that restrict a lawyer's right to practice after the relationship ends, except agreements concerning retirement benefits. It reads that Rule against Colo. RPC 1.6 (confidentiality), 1.9 (duties to former clients, including the 1.9(a) bar on adverse substantially related matters and the 1.9(c) limits on using or revealing former-client information), 5.7 (law-related services), 1.7 (concurrent conflicts), and 8.4(c). The opinion relies on Colorado Supreme Court and Court of Appeals authority (Johnson Family Law, P.C. v. Bursek; Franklin D. Azar & Assocs. P.C. v. Ngo) and on ABA and sister-state ethics opinions, several of which it cites by name.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 5.6(a) / Model Rule 5.6(a) (agreements restricting the right to practice)
• Colo. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
• Colo. RPC 1.9 / Model Rule 1.9 (duties to former clients; 1.9(a) conflict bar, 1.9(c) information limits)
• Colo. RPC 5.7 / Model Rule 5.7 (responsibilities regarding law-related services)
• Colo. RPC 1.7 / Model Rule 1.7 (concurrent conflicts of interest)
• Colo. RPC 8.4(c) / Model Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)

Cases:

• Johnson Family Law, P.C. v. Bursek, 2024 CO 1, 541 P.3d 605, per-departing-client fee unenforceable; Rule 5.6(a) protects client choice
• Franklin D. Azar & Assocs. P.C. v. Ngo, 2024 COA 99, 560 P.3d 446, restriction on soliciting a current employer's staff did not violate the Rule
• Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 607 A.2d 142 (1992), anti-raiding restriction analysis

Other opinions cited:

• ABA Formal Op. 94-381 (1994): restrictions on the right to practice
• ABA Formal Op. 300 (1961): employment-contract non-competes
• CBA Formal Op. 92 (1993): practice restrictions in settlement agreements (source of the test)
• CBA Formal Op. 105 (1999): temporary and placement-agency lawyers
• NJ ACPE Formal Op. 708 (2006): restrictive covenants for in-house counsel
• Nevada Formal Op. 56 (2019); Ohio Bd. of Prof. Conduct Op. 2020-01 (2020); Philadelphia Op. 2003-9 (2003); WSBA Advisory Ops. 2100 and 2118; NY State Bar Op. 858 (2011); D.C. Bar Op. 291 (1999)

See also

• ABA Formal Op. 94-381: Restrictions on the Right to Practice
• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits
• NV Ethics Op. 56: Restrictive Covenants for In-House Counsel
• NJ ACPE Op. 708: Restrictive Covenants for In-House Counsel

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/Formal%20Op%20151%20Restrictive%20Covenants%202026.pdf