Can a lawyer who is narrowing the fields he or she practices in sell off just the part of the practice the lawyer is dropping?

Plain-English summary

A lawyer who planned to limit the fields of law in which he or she practiced asked whether the lawyer could sell off the part of the practice from which the lawyer was withdrawing. The committee concluded the lawyer could not.

The committee explained that before DR 2-111 was adopted in 1996, a lawyer in New York could not sell a law practice at all. DR 2-111(A), added to the Code by the Appellate Divisions on May 22, 1996, permits a lawyer "retiring from a private practice of law" to sell the practice, including good will, to one or more lawyers or firms, and provides that "[r]etirement shall include the cessation of the private practice of law in the geographic area," defined as the county and city and any contiguous county or city in which the practice was conducted.

Reading that text against the rule's drafting history, the committee held that "retiring" means retiring completely from private practice in the geographic area; a lawyer may not "retire" from one part of a practice and continue in another part in the same area. The committee noted that the New York State Bar Association's special committee had proposed allowing a lawyer to sell a discrete portion of a practice while confining later practice to limited fields, but that the House of Delegates rejected that proposal, so it was not part of the rule the Appellate Divisions adopted. The committee therefore concluded a lawyer may not sell a portion of the practice and keep practicing in other limited or specific fields in the same geographic area.

Currency note

This opinion was issued in 1998, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 Treat this page as historical context, not current guidance.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: Can a lawyer sell only the practice area he or she is giving up?

A: The opinion concluded no. A lawyer may not sell one portion of a practice and continue practicing in other fields in the same geographic area.

Q: When can a lawyer sell a law practice in New York at all?

A: The opinion explained DR 2-111 permits a sale only on retiring from private practice, which the rule defines to include ceasing the private practice of law in the county and city (and contiguous areas) where the practice was conducted.

Q: Could the seller stay in practice nearby in a different field?

A: The opinion said no, pointing out that the State Bar's proposal to allow exactly that, selling a discrete portion while practicing in limited fields, was rejected by the House of Delegates and never adopted.

Background and rules framework

The opinion interpreted DR 2-111 of New York's former Code of Professional Responsibility, adopted in 1996, which for the first time allowed a New York lawyer to sell a law practice (including good will) on retirement from private practice in the geographic area; before 1996, EC 4-6 and committee opinions barred such sales. The Model Rule analogue is Rule 1.17 (sale of a law practice). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.

Citations and references

Rules of Professional Conduct:

• MR 1.17 (sale of a law practice)
• NY DR 2-111; EC 4-6 (former)

Other opinions cited:

• N.Y. State 319 (1973); N.Y. State 366 (1974); N.Y. State 561 (1984): the pre-1996 bar on selling a law practice

See also

• NY State Bar Op. 715: A contract lawyer working for multiple firms
• NY State Bar Op. 724: A law firm's custody of clients' wills

Source

• Landing page: https://nysba.org/opinion-707/