Can a law firm make an associate sign a non-compete that bars the associate from practicing law near the firm after leaving?

Plain-English summary

The committee was asked whether an attorney could include in an associate's employment agreement a restrictive covenant barring the associate from practicing law within a stated distance of the attorney's office once the association ended. It answered "qualified no": such a restrictive covenant is improper, except as a condition to the payment of retirement benefits. The committee cited DR 2-108(A) and ABA Formal Opinion 300.

Currency note

This opinion was issued in 1977 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm bar a departing associate from practicing law nearby through an employment-agreement covenant?

A: No, as a general matter. The committee concluded such a covenant is improper.

Q: Is there any exception?

A: Yes. The committee said the covenant is permissible when it is a condition to the payment of retirement benefits.

Background and rules framework

The opinion applies DR 2-108(A), which restricted agreements limiting a lawyer's right to practice after termination of a relationship, with an exception tied to retirement benefits. The modern analog is Model Rule 5.6(a), which prohibits an employment or other agreement that restricts a lawyer's right to practice after the relationship ends, except an agreement concerning retirement benefits.

Citations and references

Rules of Professional Conduct:

• DR 2-108(A) (restrictions on a lawyer's right to practice); modern analog Model Rule 5.6(a)

Other opinions cited:

• ABA Formal Opinion 300

See also

• ABA Formal Op. 06-444: Retirement Restrictive Covenants
• ABA Formal Op. 94-381: Restrictions on Right to Practice

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-176.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-176
Issued: November 1977

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question.

May an attorney include as part of an employment agreement with an associate a restrictive covenant prohibiting the associate from practicing law within a stated distance of the attorney’s office upon termination of the association?

Answer:

Qualified no.

References:

DR 2-108(A); ABA Formal Opinion 300
OPINION

Such a restrictive covenant is improper except as a condition to payment of retirement benefits.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.