Can a law firm agree to conditions a government demands that would limit or shape its practice, and what ethics rules does that implicate?

Plain-English summary

Opinion 391 (published October 2025) responds to inquiries about prospective agreements between a government and lawyers or law firms that carry conditions limiting or shaping the firm's practice. The Committee identifies at least three sets of D.C. Rules that such an arrangement can implicate: conflicts of interest for current or future matters adverse to that government, improper restrictions on a lawyer's right to practice, and interference with the lawyer's professional independence.

On conflicts, the opinion explains that each client is entitled to conflict-free representation, and that a lawyer's own financial, business, property, or personal interests can create a personal-interest conflict under Rule 1.7(b)(4). A lawyer may proceed despite such a conflict only if the lawyer reasonably believes she can provide competent and diligent representation to each affected client and the client gives informed consent after full disclosure. The Committee observes that a firm bound by an agreement whose triggering conduct it cannot identify, or whose terms the government can change unilaterally, may be unable to give the full disclosure that valid informed consent requires, and so may be unable to obtain a waiver or to remove the cause of the conflict.

On restrictions, the opinion explains that Rule 5.6(b) bars agreements that make a restriction on a lawyer's right to practice part of the settlement of a controversy between parties, and that D.C. reads this prohibition broadly. The Committee notes the D.C. Court of Appeals has stressed the need to protect future clients' access to counsel of their choosing, and in 2021 held that agreements prohibited by Rule 5.6 are void as against public policy. On independence, the opinion explains that Rule 5.4(c) bars a lawyer from letting a person who recommends the lawyer direct or regulate the lawyer's professional judgment, including direction about whether to accept or decline a particular client. The Committee concludes that the restrictions-on-practice and independence rules also bind lawyers who negotiate such agreements on the government's behalf.

In practice

Under this opinion, a firm weighing an agreement with a government that would limit or shape its practice has to work through three questions. First, conflicts: the opinion concludes that a personal-interest conflict under Rule 1.7(b)(4) can arise where the agreement would impair the firm's ability to represent existing or new clients adverse to that government, and that a valid waiver may be unobtainable when the firm cannot make full disclosure of a conflict whose scope the government can alter.

Second, restrictions on practice: the opinion concludes that Rule 5.6(b) (which D.C. reads to reach settlements of controversies between parties, not only client controversies) and Rule 5.6(a) may be implicated, and that under D.C. Court of Appeals precedent agreements prohibited by Rule 5.6 are void as against public policy. Third, professional independence: the opinion concludes that Rule 5.4(c) prohibits a lawyer from letting a person who recommends the lawyer direct the lawyer's professional judgment, including direction about which clients to accept or decline. The opinion states that a lawyer negotiating such an agreement on the government's side is bound by the same restrictions, because a lawyer who induces or assists another lawyer's violation also violates the Rules.

Common questions

Q: Can a firm agree to government-demanded conditions that limit which clients or matters it will take on?

A: The opinion concludes the firm must first examine whether the arrangement would prevent it from providing conflict-free representation to existing and new clients adverse to that government under Rule 1.7(b)(4); if it would, and a valid waiver cannot be obtained, the firm cannot enter the arrangement consistent with the Rules.

Q: Why might the firm be unable to get a client waiver?

A: The opinion concludes that if the firm does not know what conduct might trigger adverse government action, or if the government can change the commitments unilaterally, the firm cannot give clients the full disclosure of the possible conflict and its adverse consequences that informed consent requires.

Q: Does Rule 5.6 reach an agreement with a government, not just a settlement between private litigants?

A: The opinion concludes that D.C.'s Rule 5.6(b) is broader than the ABA Model Rule because the D.C. Bar deleted "private" from "controversy between private parties," so the rule reaches restrictions that are part of settling a controversy between parties, and that the D.C. Court of Appeals has held such prohibited agreements void as against public policy.

Q: Do these rules also bind the government lawyers negotiating the agreement?

A: Yes. The opinion concludes that Rule 5.6 applies to any lawyer who makes such an agreement, including lawyers on the government's side, and that a lawyer who induces or assists another lawyer's violation is also guilty of a violation.

Q: What does professional independence add to the analysis?

A: The opinion concludes that under Rule 5.4(c) a lawyer may not permit a person who recommends the lawyer to direct or regulate the lawyer's professional judgment, which includes a government official directing the lawyer to take on a recommended client or specifying what services the lawyer may provide.

Background and rules framework

The opinion examines agreements between a government and lawyers or firms that carry conditions limiting or shaping the firm's practice. Rule 1.7(b)(4) prohibits representation when the lawyer's professional judgment will be or reasonably may be adversely affected by the lawyer's responsibilities to a third party or the lawyer's own interests, and Rule 1.7(c) permits representation despite such a conflict only on each affected client's informed consent plus the lawyer's reasonable belief that competent and diligent representation is possible; Rule 1.10(a)(1) governs imputation of a personal-interest conflict to the rest of the firm.

Rule 5.6(a) and (b) restrict agreements limiting a lawyer's right to practice, and Rule 5.4(c) protects a lawyer's professional independence from third parties who recommend the lawyer. The opinion also draws on the Scope section, Rule 1.3 (diligence and zeal), and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 5.6(a), (b) / Model Rule 5.6 (restrictions on the right to practice)
• D.C. RPC 1.7(b)(4), (c) / Model Rule 1.7 (conflicts of interest)
• D.C. RPC 5.4(c) / Model Rule 5.4 (professional independence of a lawyer)
• D.C. RPC 1.10(a)(1) / Model Rule 1.10 (imputed disqualification)
• D.C. RPC 1.16 / Model Rule 1.16 (declining or terminating representation)
• D.C. RPC 1.3 / Model Rule 1.3 (diligence and zeal)

Cases:

• Strickland v. Washington, 466 U.S. 668 (1984), a client's entitlement to conflict-free representation
• In re Evans, 902 A.2d 56 (D.C. 2007), conflict created by a lawyer's personal financial interest
• Jacobson Holman, PLLC v. Gentner, 244 A.3d 690 (D.C. 2021), agreements prohibited by Rule 5.6 are void as against public policy
• In re Hager, 812 A.2d 904 (D.C. 2002), broad reading of Rule 5.6 to protect future clients' access to counsel
• Neuman v. Akman, 715 A.2d 127 (D.C. 1998), protecting future clients against a restricted pool of attorneys

Other authorities:

• U.S. Dept. of Justice, Deputy Attorney General Memorandum (May 9, 2025): DOJ position that a private lawyer's adversity to any element of the federal government is a conflict with the executive branch

Other opinions cited:

• ABA Formal Op. 93-371 (1993): restrictions on representing future clients
• D.C. Bar Ethics Ops. 210 (1990), 335 (2006), and 367 (2014): personal-interest conflicts and Rule 5.6 settlement restrictions
• Ohio Bd. of Prof. Conduct Op. 2019-7 (2019): professional independence and third-party direction

See also

• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits
• CBA Formal Op. 92: Practice Limits in Settlements
• Florida Ethics Op. 04-2: Settlement Clause Limiting a Lawyer's Practice

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-391