Can a law firm's employment agreement bar a departing partner from soliciting, hiring, or recruiting the firm's other lawyers?

Plain-English summary

The inquiring lawyer's firm had an employment-agreement clause providing that partners and shareholders would not solicit, hire, or recruit lawyers at the firm for a period of years after leaving. There was no pending litigation about the clause, but the inquiring lawyer (responsible for the firm's compliance with the rules) asked whether it violates the Rules of Professional Conduct, citing ABA Informal Opinion 1417 (1978) and Jacob v. Norris, McLaughlin & Marcus.

The committee concluded that an employment agreement preventing a departing partner or shareholder from soliciting, hiring, or recruiting other lawyers in the firm violates RPC 5.6(a). It said the clause constitutes a restriction on the right to practice of the departing partner or shareholder and on the right to practice of the firm's other lawyers. The committee added that the provision also affects consumers of legal services, because it can prevent the formation of teams of lawyers that might best represent those consumers.

Currency note

This opinion was issued in 2002, 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a post-departure no-solicit/no-hire/no-recruit clause covering the firm's own lawyers as a restriction on the right to practice that violates RPC 5.6(a). The opinion frames the restriction as running against both the departing lawyer and the lawyers who remain, and as harmful to clients because it can block the formation of the best lawyer teams.

Common questions

Q: Can a firm stop a departing partner from recruiting the firm's lawyers after leaving?

A: The committee concluded that an agreement barring a departing partner or shareholder from soliciting, hiring, or recruiting the firm's other lawyers violates RPC 5.6(a).

Q: Why is a no-recruit clause a "restriction on the right to practice"?

A: The committee said the clause restricts the right to practice of both the departing lawyer and the firm's other lawyers, and can harm consumers by preventing the formation of lawyer teams that might best represent them.

Q: Does it matter that no one is litigating the clause yet?

A: The committee answered the ethics question on its face; it concluded the clause violates RPC 5.6(a) regardless of whether litigation about it was pending.

Background and rules framework

The opinion applies Washington RPC 5.6(a) (restrictions on a lawyer's right to practice; corresponding to Model Rule 5.6(a)), which bars a partnership, shareholder, or employment agreement that restricts a lawyer's right to practice after the relationship ends. The committee read the rule to reach not only direct practice restrictions but a clause barring recruitment of the firm's lawyers, because of its effect on the departing lawyer, the remaining lawyers, and clients. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

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

Cases:

• Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 607 A.2d 142 (N.J. 1992), cited by the inquiry on restrictions on a departing lawyer's right to practice.

Other opinions cited:

• ABA Informal Opinion 1417 (1978), cited by the inquiry on restrictions on the right to practice.

See also

• WSBA Ethics Op. 1384: Noncompete and a Retiring Partner's Restrictions on Practice
• WSBA Ethics Op. 1446: Buy-Sell Agreement and a Covenant Not to Compete
• ABA Formal Op. 06-444: Restrictive Covenants and Retirement Benefits

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1241

Original opinion text

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

Advisory Opinion: 1998
Year Issued: 2002
RPC(s): RPC 5.6(a)
Subject: employment agreement, restriction of right to practice law after leaving law firm

A clause in the employment agreement of the inquiring lawyer’s firm provides that partners/shareholders of the firm will not solicit, hire, or recruit lawyers at the firm for a period of years after termination of employment. There is no pending litigation regarding this clause, but the inquiring lawyer, who is responsible for the firm’s compliance with the Rules of Professional Conduct, wishes to know whether the clause violates the Rules. The inquiring lawyer has cited the committee, ABA Informal Opinion 1417 (1978) and Jacob v Norris, McLaughlin & Marcus, 607 A.2d 142, 128 N.J. 10 (1992).

An employment agreement which prevents a partner/shareholder who is leaving the firm from soliciting, hiring, or recruiting other lawyers in the firm does violate RPC 5.6(a). It constitutes a restriction on the right to practice of the partner/shareholder who is leaving and the right to practice of the other lawyers of the firm. The provision also impacts consumers of legal services, because it can prevent formation of teams of lawyers that might best represent those consumers.