Can a law firm's agreement with a retiring partner include a non-compete clause without violating the rule against restrictions on the right to practice?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee reviewed a contract provision regarding a retiring partner that was submitted with the inquiry. It was of the opinion that if this is an actual retirement agreement, and not an agreement in settlement of a controversy, there is no violation of RPC 5.6. The committee could render no opinion on the validity of the liquidated damages provision.
Currency note
This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 a non-compete with a retiring partner violate the rule against practice restrictions?
A: Under this 1990 opinion, not if it is part of a genuine retirement agreement rather than a settlement of a controversy; the committee found no violation of RPC 5.6 in that case.
Q: What turned on whether it was a true retirement agreement?
A: RPC 5.6 generally bars restrictions on a lawyer's right to practice, but the committee treated a bona fide retirement-benefits agreement as outside that prohibition; a non-compete tied to settling a dispute would be a different matter.
Q: Did the committee approve the liquidated damages clause?
A: No. The committee was of the opinion that it could render no opinion on the validity of the liquidated damages provision.
Background and rules framework
At the time of this opinion, Washington's RPC 5.6 restricted agreements that limit a lawyer's right to practice, with an exception for restrictions concerning retirement benefits, the subject the Model Rules place in Rule 5.6. The committee keyed its conclusion to whether the agreement was an actual retirement agreement, and left the liquidated damages clause as a legal question it would not resolve.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 5.6 (restrictions on right to practice)
- Washington RPC 5.6
See also
- WA Ethics Op. 1374: Identifying as a Lawyer in a Nonlawyer Business
- WA Ethics Op. 1368: Partnership Suing Its Partner
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=464
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee reviewed the contract provision regarding the retiring partner as submitted with your inquiry. The Committee was of the opinion that if this is an actual retirement agreement, and not an agreement in settlement of a controversy, there is no violation of RPC 5.6. However, the Committee could render no opinion on the validity of the liquidated damages provision.
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