Could a Vermont firm require an attorney to sign a broad agreement barring future use of firm-designated information?
Apply this to your situation
This page answers the general question as of 1994. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A firm asked an employed lawyer to sign an agreement treating broad categories of business and legal information as the firm's exclusive property, with restrictions continuing for two years after employment. The committee examined the agreement under former DR 2-108(A), which barred lawyer employment agreements restricting practice after the relationship ends.
The opinion distinguished genuine proprietary documents, such as specialized software, financial data, and form files, from a lawyer's memory, learning, and experience. It said narrowly limited protection of the former could comply with the Code, and the firm could stop a departing lawyer from taking forms, but could not prevent the lawyer from reconstructing them from memory. This agreement reached “information in any form whatsoever,” including the lawyer's acquired experience, and went too far under DR 2-108(A).
Currency note
This opinion was issued in 1994 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.
Common questions
Q: Could the firm protect its proprietary form files and software?
A: The opinion said a narrowly drawn agreement could restrict use of genuine firm materials, including specialized software or forms developed for firm clients.
Q: Why did the proposed agreement violate the Code?
A: Its broad definition of information reached the lawyer's mental impressions, memory, and experience for future client work, restricting the lawyer's ability to practice.
Q: Could a departed lawyer reconstruct a form from memory?
A: Yes. The committee said the firm could prohibit taking the form but could not prevent reconstruction from memory.
Background and rules framework
The opinion applied former DR 2-108(A) to distinguish permissible proprietary protection from an agreement restricting post-employment law practice. It discussed ABA Informal Opinions 1417 and 1301 as examples of impermissible restrictions on later professional association or employment.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 2-108(A)
Other opinions cited:
- ABA Informal Opinion 1417, limits on later professional associations
- ABA Informal Opinion 1301, a restriction on later employment by a competitor
See also
- Vermont Ethics Op. 95-11: Settlement practice restriction
- Vermont Ethics Op. 97-01: Association information
Source
- Landing page: Vermont Bar Association practice-restriction opinions
- Original PDF: Opinion 94-09
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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