Can an Ohio law firm and its lawyers agree to a non-competition covenant restricting a lawyer's right to practice after leaving the firm?
Ohio BPC Opinion 90-014: Whether Lawyers May Enter a Non-Competition Agreement Restricting the Right to Practice
Short answer: The Board concluded that a non-competition agreement restricting a lawyer's right to practice after leaving a firm violates DR 2-108(A), except where the restriction is a condition of payment of retirement benefits.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's 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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The Board addressed whether a firm and its members could participate in a non-competition agreement that the requesting lawyer had included with the request. The Board explained that DR 2-108(A) clearly prohibits any type of restrictive covenant or non-competition agreement in partnership or employment agreements, quoting the rule: a lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of the relationship created by the agreement, except as a condition of payment of retirement benefits.
The Board noted that the Commentary to Model Rule 5.6, although not adopted in Ohio, states that restrictions on lawyers after leaving a firm limit not only their professional autonomy but also the freedom of clients to choose a lawyer. It added that restrictive covenants among lawyers may lead to the bartering of clients, and reasoned that lawyers must preserve a client's freedom to employ counsel of choice, a freedom that outweighs a lawyer's interest in protection against competition for clients.
The Board recognized the rule's single exception: restrictive covenants are permitted when entered into as a condition of payment of retirement benefits, observing that such agreements typically require forfeiture or suspension of retirement benefits if the lawyer engages in competing employment. The Board concluded that a lawyer's participation in a non-competition agreement would be a violation of DR 2-108.
Currency note
This opinion issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007; Ohio's analogous rule is now Prof. Cond. R. 5.6). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Can a law firm require departing lawyers to sign a non-compete?
A: Under this opinion, no. The Board concluded that participating in a non-competition agreement that restricts a lawyer's right to practice after leaving the firm would violate DR 2-108(A).
Q: Is there any exception that allows a restriction tied to leaving the firm?
A: The Board concluded the only exception is a restriction entered into as a condition of payment of retirement benefits, which typically requires forfeiture or suspension of those benefits if the lawyer competes.
Q: Why does the rule treat lawyer non-competes differently from those in other businesses?
A: The Board reasoned that such restrictions limit a client's freedom to choose counsel and may lead to the bartering of clients, and that the client's freedom to employ counsel of choice outweighs a lawyer's interest in protection against competition.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 2-108(A), which bars partnership or employment agreements restricting a lawyer's right to practice after the relationship ends, except as a condition of retirement benefits. The Board referenced the Commentary to Model Rule 5.6, which Ohio had not then adopted, for the rationale.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-108(A), prohibition on restrictive covenants in partnership or employment agreements among lawyers
Other rules referenced:
- Model Rule 5.6 Commentary (not then adopted in Ohio), restrictions on lawyers leaving a firm
Other authorities cited:
- ABA/BNA Lawyer's Manual on Professional Conduct 51:1201 (1984), bartering of clients
See also
- Ohio BPC Op. 1989-035: Attorney Practicing in Two Law Firms
- Ohio BPC Op. 1990-003: Senior Attorney 'Of Counsel' on Letterhead
- Ohio BPC Op. 1989-002: Sharing Fees With a Suspended or Disbarred Lawyer
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-014.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 90-14
Issued August 17, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: Under DR 2-108 (A), a lawyer may not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition of payment of retirement benefits. Such restrictive covenants unduly limit the freedom of clients to choose a lawyer.
OPINION: We have before us your request for an advisory opinion on whether your firm and members of your firm may participate in a non-competition agreement, which you included in your letter.
Disciplinary Rule 2-108 (A) clearly prohibits any type of restrictive covenant or non-competition agreement for use in partnership or employment agreements. The rule states "[a] lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition of payment of retirement benefits." Code of Professional Responsibility, DR 2-108 (A). The Commentary to Model Rule 5.6, although not adopted in Ohio, states that restrictions on lawyers after leaving a firm "not only limit their professional autonomy but also limit the freedom of clients to choose a lawyer."
Furthermore, restrictive covenants or non-competition agreements among lawyers may lead to the bartering of clients. ABA/BNA Lawyer's Manual on Professional Conduct 51:1201 (1984). As lawyers, we must preserve a client's freedom to employ counsel of his or her choice. This freedom outweighs a lawyer's interest in being protected against potential competition for clients. Id. (citation omitted).
Restrictive covenants are permitted when entered into as a condition of payment of retirement benefits. Typically, these agreements require forfeiture or suspension of retirement benefits if the lawyer engages in competing employment.
In conclusion, it is our opinion and you are so advised that participation of a lawyer in a non-competition agreement would be a violation of DR 2-108.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to the questions arising under the Code of Professional Responsibility.