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Restrictive Covenants and Partnership Agreements
A partnership is the legal framework around which many law firms are organized, and the partnership agreement is the final word in the rights and responsibilities of the firm's partners. But law firm partnerships are limited in the terms they may include in their partnership agreements; these agreements must comply with legal ethics rules. Restrictive covenants, common in other industries, often run afoul of the legal ethics rules. This article examines the ethics of common partnership restrictive covenants, including non-compete and forfeiture-for-competition provisions, notice of withdrawal requirements, prohibitions on solicitation of partners, employees, and clients, and restrictions on using and taking documents, and suggests ways for firms to ethically protect the firm's interests.
Non-Compete and Forfeiture-for-Competition Provisions
Provisions that restrict the right of a partner to compete after leaving the partnership are unethical because Model Rules of Professional Conduct Rule 5.6 (a version of which has been adopted by almost all jurisdictions) prohibits agreements that “restrict the right of a lawyer to practice after termination of the relationship.” The rule embodies the long-standing doctrine of client choice with respect to legal representation: the “client's power to choose, discharge, or replace a lawyer borders on the absolute.” Robert William Hillman, The Ethics of Lawyer Mobility ' 2.3.1 (2d ed. 2009).
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