Can a lawyer placement agency contract bar a temporary lawyer from later taking a job at the firm where placed or with that firm's client?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 291 (adopted June 1999) addressed a temporary lawyer who asked whether common provisions in placement-agency contracts violate Rule 5.6. Rule 5.6(a) bars a lawyer from making or offering an employment agreement that restricts a lawyer's right to practice after the relationship ends (except as to retirement benefits). The committee, quoting the D.C. Court of Appeals, explained the rule protects lawyers, especially young ones, from bargaining away the right to practice, and protects clients' freedom to choose counsel; the committee also concluded (despite the comment's reference to "partners or associates") that Rule 5.6 applies to lawyers generally, including temporary lawyers.
Applying the rule, the committee held that a contract clause prohibiting a temporary lawyer from accepting later employment with the firm where placed, or with a client of that firm, violates Rule 5.6, as does a clause barring acceptance unless the firm pays the agency a fee, because the lawyer should not be used as a bargaining chip to enforce the agency's contract. The same is true of clauses barring the lawyer from applying for such employment, and of clauses barring the lawyer from responding to a former or prospective client's inquiries about representation. A clause restricting employment with a third party (such as a corporate client of the firm) likewise fails, because it hampers the lawyer's autonomy and the client's choice.
The committee identified what is permissible. A temporary lawyer may agree to give the agency notice of an offer of subsequent employment from a firm where placed, so the agency can collect a fee from that firm; such a notice clause does not restrict the right to practice. And a firm that hires a temporary lawyer permanently may agree to pay a reasonable placement fee to the agency, just as it could for any recruiter. The committee noted its related Opinions 284 (advising and billing clients for temporary lawyers) and 221 (departing-lawyer announcements).
Currency note
This opinion was issued in 1999, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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: Could a placement agency bar a temporary lawyer from later joining the firm where placed?
A: The opinion concluded no. A clause prohibiting the temporary lawyer from accepting (or even applying for) later employment with the firm where placed, or with that firm's clients, violates Rule 5.6(a)'s bar on restricting a lawyer's right to practice.
Q: Does Rule 5.6 apply to temporary lawyers, not just partners and associates?
A: The opinion concluded yes. Despite the comment's older "partners or associates" language, the committee read Rule 5.6 to apply to lawyers generally, including temporary lawyers.
Q: Could the lawyer agree to tell the agency about a later job offer?
A: The opinion concluded yes. A clause requiring the lawyer to notify the agency of a later offer, so the agency can collect a fee from the hiring firm, does not restrict the lawyer's right to practice and is permissible.
Q: Could a firm agree to pay the agency a placement fee?
A: The opinion concluded yes. A firm that permanently hires a temporary lawyer may agree to pay a reasonable placement fee to the agency, like a fee paid to any recruiter.
Background and rules framework
The opinion interpreted D.C. Rule 5.6(a) (restrictions on the right to practice in partnership or employment agreements, with the retirement-benefits exception). It applied the rule's twin purposes (lawyer autonomy and client choice of counsel) to placement-agency contracts and distinguished impermissible practice restrictions from permissible notice clauses and placement fees, drawing on the D.C. Court of Appeals decision in Neuman v. Akman and the committee's prior opinions.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 5.6(a) / Model Rule 5.6(a) (restrictions on the right to practice)
Cases:
- Neuman v. Akman, 715 A.2d 127 (D.C. 1998) (purpose of Rule 5.6; permissible retirement-benefit restriction)
- Dwyer v. Jung, 336 A.2d 498 (N.J. Super. Ct. Ch. Div. 1975) (client-allocation clause unenforceable)
Other opinions cited:
- D.C. Ethics Opinions 97, 181, 221, 284
- ABA Formal Op. 94-381 (1994); ABA Formal Op. 88-356 (temporary lawyers); ABA Informal Op. 1417 (1978)
See also
- ABA Formal Op. 06-444: Retirement Restrictive Covenants
- DC Ethics Op. 391: Government Deals and Practice Limits
- ABA Formal Op. 00-417: Settlement Limits on Lawyers
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-291
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