WSBA 2001

Can a lawyer who is also a CPA sign a CPA firm's noncompete that bars providing tax-related legal services to the firm's clients after leaving?

Short answer: No, as drafted. The committee concluded the noncompete would violate RPC 5.6 because it restricted the lawyer's right to practice after termination, and that a damages-only remedy was still a restriction; a proviso stating the clause does not limit the right to practice law would cure the violation.

Apply this to your situation

This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The inquirer was a lawyer and a CPA employed by a CPA firm. The firm asked him to sign an employment agreement with a noncompete clause that would preclude him, if he terminated employment, from providing similar tax-related services as a lawyer to any of the CPA firm's clients or prospective clients for twelve months. He declined to sign, but suggested a proviso acknowledging RPC 5.6's bar on noncompetition agreements and exempting the practice of law from the noncompete clause.

The committee concluded that the proposed noncompetition agreement would violate RPC 5.6's direction that "a lawyer shall not participate in . . . making a[n] . . . employment agreement that restricts the rights of a lawyer to practice after termination of the relationship." It said the fact that the lawyer might only be subject to damages for violating the agreement still amounted to a restriction. The committee concluded that the proposed additional clause, "these provisions shall in no way limit or restrict employee's right to practice law," would cure the violation.

Currency note

This opinion was issued in 2001, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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 RPC 5.6 reach a noncompete in a non-law employment agreement, such as one at a CPA firm?

A: The committee concluded the CPA firm's proposed noncompete would violate RPC 5.6 because it restricted the lawyer's right to practice, as a lawyer, after termination.

Q: Does it matter that the only consequence of breaching the clause was damages?

A: No. The committee said the fact that the lawyer might only be subject to damages still amounted to a restriction on the right to practice.

Q: How could the agreement be fixed?

A: The committee concluded that the proposed clause stating the provisions "shall in no way limit or restrict employee's right to practice law" would cure the violation.

Background and rules framework

The opinion applies Washington RPC 5.6 (restrictions on a lawyer's right to practice; corresponding to Model Rule 5.6), which bars a lawyer from participating in an employment agreement that restricts the right to practice after the relationship ends. The committee read the rule to cover a noncompete imposed by a non-law (CPA) employer to the extent it restricted the inquirer's practice as a lawyer. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

Model Rule 5.6 / Washington RPC 5.6 (restrictions on a lawyer's right to practice)

Source

Landing page: https://ao.wsba.org/print.aspx?ID=1193

Original opinion text

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

Advisory Opinion: 1953
Year Issued: 2001
RPC(s): RPC 5.6
Subject: Lawyer/CPA works for CPA firms that requires lawyer/CPA to sign termination agreement limiting future employment

The inquirer is a lawyer and a CPA employed by a CPA firm. The firm has asked that he sign an employment agreement with a noncompete clause. The clause would preclude him, if he terminates employment with the CPA firm, from providing similar tax-related services for twelve months from termination, as a lawyer, to any of the CPA firm’s clients or prospective clients. The lawyer declined to sign the agreement, but suggested a proviso acknowledging restrictions of RPC 5.6 prohibiting noncompetition agreements and exempting the practice of law from the scope of the noncompete clause.

The committee opined that the employer’s proposed noncompetition agreement would violate RPC 5.6’s explicit direction that ". . . a lawyer shall not participate in . . . making a[n] . . . employment agreement that restricts the rights of a lawyer to practice after termination of the relationship." The fact that the lawyer might only be subject to damages if he should violate the agreement still amounts to a restriction. The proposed additional clause that "these provisions shall in no way limit or restrict employee’s right to practice law" would cure the violation.

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