Can in-house general counsel make staff attorneys sign a confidentiality agreement as a condition of employment?

Plain-English summary

The in-house general counsel of a New York not-for-profit wanted to require the company's in-house staff attorneys to sign the same multi-jurisdiction confidentiality agreement imposed on all employees. The agreement bars disclosure of the company's trade secrets and confidential business and regulatory information, with the obligations surviving termination (indefinitely for trade secrets, two years otherwise), and it contains a savings clause applicable only to licensed attorneys.

The committee frames the central issue under Rule 5.6(a)(1), which bars agreements that restrict a lawyer's right to practice after the employment relationship ends; the rule protects both a client's freedom to choose counsel and a lawyer's freedom to choose clients. A confidentiality agreement could run afoul of Rule 5.6(a)(1) if it defines protected information more broadly than Rule 1.6(a), because enforcing it after the lawyer leaves could restrict the lawyer's practice. The committee notes, though, that Rule 1.6(a)'s definition of confidential information is itself very broad, and a New York lawyer's continuing duty under Rule 1.9(c) is nearly as broad, so most contractual confidentiality provisions will not exceed the lawyer's existing obligations.

The savings clause resolves the matter. It states that, as applied to licensed attorneys, the agreement is not meant to restrict the right to practice law, is to be interpreted consistently with the applicable rules of professional conduct, and does not expand the duty of confidentiality under Rule 1.6 or 1.9. The committee holds that this clause keeps the agreement within the Rules and makes further Rule 5.6 analysis unnecessary, citing a Connecticut informal opinion to the same effect and distinguishing New Jersey Opinion 708 and Washington Opinion 2100. It expressly does not opine on whether the agreement is enforceable, noting that ethics compliance and contractual enforceability are separate questions of law.

In practice

Under the New York rule as it stood at the time of the opinion, a company may condition an in-house lawyer's employment on signing a confidentiality agreement, and an agreement that on its face appears broader than Rule 1.6 does not violate Rule 5.6(a)(1) where a savings clause confines it to the Rules and disclaims any restriction on the right to practice law. The opinion holds that the savings clause makes the agreement compliant; it does not decide whether the agreement is legally enforceable, which it treats as a question of law beyond its jurisdiction.

Common questions

Q: Can a company require its in-house lawyers to sign a confidentiality agreement at all?

A: Yes. The opinion holds that a New York general counsel may require staff attorneys to sign a confidentiality agreement, provided it does not restrict their right to practice law after employment or expand their confidentiality duties under the Rules.

Q: What makes such an agreement comply with Rule 5.6?

A: A savings clause. The opinion concludes that a clause stating the agreement does not restrict the right to practice law and is to be read consistently with the Rules keeps an otherwise broad agreement within Rule 5.6(a)(1).

Q: Does the opinion say the agreement is enforceable?

A: No. The opinion expressly declines to decide enforceability, noting that an agreement may be ethically permissible yet unenforceable, or unenforceable yet not a rule violation; enforceability is a question of law.

Background and rules framework

The opinion applies Rule 5.6(a)(1) (no agreement restricting the right to practice after termination), measured against Rule 1.6(a) (the broad definition of confidential information) and Rule 1.9(c) (the continuing duty to a former client). These track Model Rules 5.6, 1.6, and 1.9. It relies on the savings clause to avoid any conflict between the contract and the Rules.

Citations and references

Rules of Professional Conduct:

• New York Rule 5.6(a)(1) (no restriction on the right to practice after termination); Model Rule 5.6
• New York Rule 1.6(a) (definition of confidential information); Model Rule 1.6
• New York Rule 1.9(c) (continuing duty to former clients); Model Rule 1.9

Cases:

• Cohen v. Lord, Day & Lord, 75 N.Y.2d 95 (1989), purpose of the restriction rule
• Feldman v. Minars, 230 A.D.2d 356 (1st Dep't 1997), enforceability distinct from ethics

Other opinions cited:

• N.Y. State 129 (1970) and 730 (2000): restrictions on the right to practice in partnership and settlement agreements
• New Jersey Op. 708 (2006); Washington Advisory Op. 2100 (2005); Connecticut Informal Op. 02-05 (2002)

See also

• NY State Bar Op. 876: Conflicts when a lawyer is associated with two firms
• NY State Bar Op. 856: Limiting the scope of a representation

Source

• Landing page: https://nysba.org/ethics-opinion-858/