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NJ Upholds Non-Competition Agreement
As previously reported in LFPBR, several states have upheld the forfeiture of non-qualified retirement benefits otherwise payable to a partner choosing to compete with the firm. See, eg, Sheldon I. Banoff, “Illinois Developments Are Good News for Multi-State Law Firms Across the Country,” LFPBR (Nov. 2002), pg. 5. In Borteck v. Riker, Danzig, Scherer, Hyland, and Perretti, LLP (A-31-03) (April 5, 2004), the New Jersey Supreme Court unanimously concluded that the retirement provisions of a law firm's partnership agreement did not violate N.J. Rules of Professional Conduct (RPC) 5.6, and held the competing partner to lose his retirement benefits. The case provides further guidance for firms in designing, drafting and defending enforceable forfeiture-for-competition agreements.
At age 53, Borteck (an 11-year partner at Riker) withdrew to join another New Jersey law firm. At the time of his departure, he was subject to a partnership agreement (the Riker Agreement) that set forth a withdrawing or retiring partner's entitlement to certain payments, as well as a notice provision governing the departure.
Under the Riker Agreement, “retirement” means the permanent retirement from the practice of law. The partner must be a capital partner, at least 55 years old. Continuation with the firm in an of counsel status after retirement is not inconsistent with eligibility for retirement benefits. In recognizing the importance of public service, a Riker partner is deemed to have retired from law practice even if he or she is appointed to the bench, enters government service, or assumes a position in academia. Entitlement to continuation of retirement benefits is conditioned on the former partner remaining in retirement status.
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