Can a lawyer working a non-legal job sign an employer's non-solicitation agreement that could be read to restrict practicing law after the job ends?
NY State Bar Ethics Opinion 1151: Restrictive covenants on lawyers
Short answer: If an employer's non-solicitation clause restricts the lawyer's right to practice law after the employment ends, Rule 5.6(a)(1) forbids the lawyer to agree to it, even where the job itself involves no legal work; the lawyer may sign only if the clause is expressly limited to what the ethics rules permit.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer is admitted in New York but employed by an organization that renders no legal services; in the job the inquirer does not practice law, give legal advice, or hold out as an attorney. The employer's standard employment contract includes an "Agreement Not To Solicit" barring the employee, during employment and for eighteen months afterward, from communicating with or providing services to the employer's current or prospective customers relating to the employer's business. The inquirer wants to keep the option to practice law after the job and worries the clause is broad enough to act as a restrictive covenant on the right to practice.
The committee applies Rule 5.6(a)(1), which bars a lawyer from making or participating in a partnership, employment, or similar agreement that restricts the lawyer's right to practice after the relationship ends, except for a retirement-benefits agreement. The committee explains the rule's purposes are to protect clients' freedom to choose counsel and lawyers' freedom to choose clients (N.Y. State 858; Rule 5.6 Comment [1]). Although prior New York opinions and case law on Rule 5.6(a)(1) involved law-partnership or lawyer-client agreements, the committee holds the rule applies regardless of whether the employment engages the lawyer to practice law: the rule's unambiguous language and purposes draw no distinction for a non-client employer. So if the clause restricts the lawyer's post-employment right to practice law, the lawyer may not agree to it.
Whether the particular clause amounts to such a restriction is a separate, fact-intensive question of contract construction. The committee accepts the inquirer's reasonable reading that the sweeping "Agreement Not To Solicit" is broad enough to restrain later law practice, so the inquirer may not sign the contract as written. But the committee identifies a cure the employer offered: adding language that the clause is enforceable only to the extent consistent with Rule 5.6(a)(1) or other applicable Rule. That proviso, the committee concludes, removes any doubt and lets the lawyer sign.
In practice
Under this opinion, a lawyer may not enter an employment agreement whose terms restrict the lawyer's right to practice law after the job ends, even when the job is entirely non-legal, because Rule 5.6(a)(1) turns on the restriction's effect on the right to practice, not on whether the employer provides legal services. The committee treats whether a given clause restricts practice as a question of contract interpretation, and accepts a reasonable reading of a broad non-solicitation clause as reaching law practice. It identifies a concrete fix the parties used: expressly making the clause enforceable only to the extent consistent with the applicable ethics rules, which the committee says removes the doubt and permits the lawyer to sign.
Common questions
Q: Does Rule 5.6 apply when the lawyer's job has nothing to do with practicing law?
A: Yes. The committee holds Rule 5.6(a)(1) applies regardless of whether the employment involves practicing law; what matters is whether the agreement restricts the lawyer's right to practice after the relationship ends (Opinion 1151 ¶ 6).
Q: Can a lawyer sign a broad non-solicitation clause that might be read to limit future practice?
A: Not as written, if it reasonably reaches law practice. The committee found the clause here too broad to sign, because it could restrain the lawyer from practicing law after employment (¶ 7).
Q: Is there a way to make such a clause acceptable?
A: Yes. Adding language that the clause is enforceable only to the extent consistent with Rule 5.6(a)(1) or another applicable Rule removes the doubt and lets the lawyer agree (¶ 8).
Background and rules framework
The opinion interprets Rule 5.6(a)(1) (Model Rule 5.6), which prohibits agreements restricting a lawyer's right to practice after a relationship ends, subject to a retirement-benefits exception. The committee reads the rule's purposes, protecting clients' choice of counsel and lawyers' choice of clients, as reaching any agreement with that restrictive effect, including one with a non-client employer.
Citations and references
Rules of Professional Conduct:
- New York Rule 5.6(a)(1) (Model Rule 5.6): no agreement restricting a lawyer's right to practice after the relationship ends
Cases:
- Cohen v. Lord, Day & Lord, 75 N.Y.2d 95 (N.Y. 1989), striking a non-compete in a law-partnership agreement
Other opinions cited:
- N.Y. State 858 (2011): confidentiality clauses may not function as restrictions on a lawyer's post-employment practice
See also
No sibling opinions yet indexed.
Source
- Landing page: https://nysba.org/ethics-opinion-1151/