Can a law firm bar a departing associate from advertising on television for three years as a condition of being named in the firm's commercials?

Plain-English summary

A firm that advertises on television proposed an agreement under which an associate, after a fifth employment anniversary, could elect to be named in the firm's commercials. If the associate so elected, then for three years after a cancellation date, if employment terminated for any reason, the associate could not advertise as an attorney in any television advertisement broadcast in the defined area; the restriction was enforceable by injunction, damages, and set-off. An associate who declined to be named faced no future advertising restriction. The agreement recited that it did not restrict the right to practice or violate Rule 5.6, and would be null if a competent authority found otherwise. The inquiry asked whether the agreement restricts the right to practice contrary to Rule 5.6(a).

The committee began with Rule 5.6(a), which bars a lawyer from offering or making a partnership or employment agreement that restricts the right to practice after the relationship ends, except an agreement on retirement benefits, and noted it is improper both to offer and to accept such a contract. It read the Comment to Rule 5.6 to recognize that restricting departing lawyers' practice limits both their professional autonomy and clients' freedom to choose a lawyer. The committee said the agreement was not the typical restrictive covenant already barred (citing S.C. Bar Advisory Opinion 82-5 and ABA Formal Opinion 300 (1961) under the prior DR 2-108(A)) and did not fall within the retirement exception; the question was whether a restriction on future advertising counts as restricting the right to practice. Drawing on ABA Informal Opinion 1417 (1978), which found that barring a departing partner from associating with the firm's lawyers for five years indirectly restricted practice in violation of DR 2-108(A), the committee reasoned that although television advertising is not the practice of law, a restriction on advertising for clients comes even closer to impinging on a client's knowledgeable, free choice of lawyers than the association restriction in Informal Opinion 1417. It concluded the agreement appears to fall within the Rule 5.6(a) prohibition as an indirect restriction on the right to practice, while declining (as the ABA had) to opine on whether such a covenant could ultimately be judicially enforced.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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: Does Rule 5.6(a) reach a restriction on advertising rather than on practicing law directly?

A: The committee said yes. Although television advertising is not the practice of law, it treated a post-departure ban on advertising for clients as an indirect restriction on the right to practice within Rule 5.6(a).

Q: Why is an advertising ban treated like a restriction on practice?

A: The committee reasoned, drawing on ABA Informal Opinion 1417, that a restriction on advertising for clients comes closer to impinging on a client's knowledgeable and free choice of lawyers than the indirect association restriction that ABA opinion had condemned.

Q: Does the agreement's recital that it does not violate Rule 5.6 save it?

A: The committee analyzed the substance and concluded the restriction appears to fall within Rule 5.6(a), notwithstanding the agreement's own statement that it complied; it noted the contract made itself void if a competent authority found a violation.

Q: Did the committee decide whether the covenant is legally enforceable?

A: No. Following ABA Informal Opinion 1417, the committee said whether a restrictive covenant may be enforced depends on a judicial conclusion in a case before a court and declined to opine on that question.

Background and rules framework

The opinion applied South Carolina Rule 5.6(a), which corresponds to Model Rule 5.6(a), barring partnership or employment agreements that restrict the right to practice after the relationship ends (except agreements on retirement benefits). The committee treated the rule as carrying forward the substance of the prior DR 2-108(A) and read the Comment to Rule 5.6 as protecting clients' freedom to choose counsel.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.6(a) / Model Rule 5.6(a): a lawyer shall not offer or make a partnership or employment agreement restricting the right to practice after termination, except an agreement on retirement benefits.

Other opinions cited:

• ABA Formal Opinion 300 (1961) and SC Bar Advisory Opinion 82-5: typical restrictive covenants under the prior DR 2-108(A).
• ABA Informal Opinion 1417 (1978): a five-year bar on a departing partner associating with the firm's lawyers indirectly restricts practice in violation of DR 2-108(A).

See also

• ABA Ethics Op. 06-444: Restrictive Covenants and Retirement Benefits
• SC Bar Ethics Op. 00-11: A Non-Compete for In-House Counsel
• DC Bar Ethics Op. 368: Restrictions on a Departing Lawyer Who Competes

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-22/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-22

A South Carolina law firm which advertises on television desires to enter into an Agreement with its associates concerning such advertisements. Pursuant to the terms of the proposed Agreement, after the associate's fifth employment anniversary with the firm, the associate may elect to have his or her name mentioned in the firm's television commercials.

The Agreement further provides that "in the event the Employee elects to have his/her name included in the Firm's television advertising . . . for a period of three (3) years after the Cancellation Date, if the Employee's employment with the Firm terminates for any reason. Employee shall not advertise Employee's service as an attorney in any television advertisement shown or broadcast in the Area as defined hereinabove." If the associate chooses not to include his name in the firm's television commercials, there will be no restrictions on the associate's future advertisements.

Paragraph 5 of the Agreement states that the Agreement is not a restriction of the right to practice law:

Not Restriction On Right to Practice Law. The parties hereto acknowledge that this Agreement does not restrict the right of Employee to practice law after the termination of the Employee's employment relationship with the Firm, and does not limit the freedom of client to choose a lawyer. Thus, both parties hereto acknowledge and agree that this Agreement does not violate Rule 5.6 of the Rules of Professional Conduct. Notwithstanding the foregoing, if a competent authority should determine that the provisions of this Agreement, if effective, would violate Rule 5.6 or any other applicable law or rule governing the practice of law in South Carolina, then this Agreement shall be deemed utterly null and void and neither party shall have any obligation to the other." The advertising restriction is enforceable by an action for injunctive relief, an action for damages, and a right of set-off against any obligation the firm may have to the departing associate.

Question:
Does the proposed agreement constitute a restriction of the right of a lawyer to practice of law prohibited by Rule 5.6(a), South Carolina Rules of Professional Conduct?

Summary:
The proposed Agreement constitutes an indirect restriction on the right to practice law. Such an indirect restriction on the right to practice constitutes a violation of Rule 5.6(a).

Opinion:
Rule 5.6(a) of the South Carolina Rules of Professional Conduct provides that "(a) lawyer shall not participate in offering or making: (a) a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement." It is improper both for an employer-lawyer to offer a contract restricting a lawyer's right to practice and for an employee-lawyer to accept it. The Comment to Rule 5.6 states in part that An Agreement restricting the right of partners or associates to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.

The proposed Agreement is not a typical restrictive covenant found in employment agreements which has been prohibited by Rule 5.6(a). See, for example, S.C. Bar Advisory Opinion No.82-5 and ABA Formal Opinion No. 300 (1961) (these opinions dealt with the prior DR 2-108(A) which contains essentially the same language as the current Rule 5.6(a). The subject Agreement does not fall within the retirement benefits exception under Rule 5.6(a); the issue here is simply whether the subject restriction on future advertising constitutes an agreement restricting the right of a lawyer to practice law within the meaning of Rule 5.6.

A somewhat similar indirect restriction of the practice of law was considered in ABA Informal Opinion 1417 (1978). In that opinion, it was determined that it would violate DR 2-108(A) for a partner leaving his firm to be bound by contract from hiring or otherwise associating with any associate employed by the firm at the time of such departure, for a period of five years. The opinion concludes as follows:

Although the agreement in question does not restrict the right of the individual lawyer to practice law directly, by restricting the right of association between attorneys it restricts such right indirectly and so falls within the prohibition of DR 2-108(A).

In the ultimate sense, the question as to whether a restrictive covenant may be enforced depends on a judicial conclusion in a case presented to a court. Consequently, the Committee does not express an opinion in response to your second query.

ABA Informal Opinion 1417. The Agreement in this case restricts a departing associate's right to advertise his or her service on television. Television advertising is of course not the "practice of law," thus, a restriction of such advertising is not a direct restriction on the right to practice law.

The restriction on advertising for clients is, however, an indirect restriction on the right to practice. A restriction on advertising comes closer to impinging on a client's knowledgeable and free choice of lawyers than the situation addressed in ABA Informal Opinion 1417. The subject Agreement therefore appears to fall within the prohibition of restrictions on the right to practice law under Rule 5.6(a).