Why Lawyers Don’t Sign Non-compete Agreements?

Q.  Why Lawyers Don’t Sign Non-compete Agreements?

A. Post-termination covenants-not to compete for lawyers are generally prohibited.  An Indiana lawyer learned the hard way.  The Supreme Court reprimanded him for including a noncompete clause in an associate’s contract and telling clients about the non-compete after firing the associate.  This lawyer was trying to take over the cases.  See http://lawprofessors.typepad.com/legal_profession/2014/11/the-indiana-supreme-court-has-imposed-a-public-reprimand-of-an-attorney-who-had-contained-a-non-compete-provision-in-an-assoc.html  While at first glance this may seem harmless, it is considered unprofessional conduct. Sanctions may be applied to those attorneys violating this Rule.

The basis of this prohibition against noncompetes regarding the legal profession is based on the client’s right to choose representation.    

Q.  What about the Rule in Georgia?

A.    For those Georgia lawyers, see Rule 5.6 of the Georgia Rules of Professional Conduct and Enforcement.   https://www.gabar.org/Handbook/index.cfm#handbook/rule135

Q.  Does this Rule apply in every state?

A.  It appears variations of Model Rules of Professional Conduct (”MRPC”) have been adopted in nearly every state.

See https://www.ameicanbar.org/groups/professional_responsibility/policy/rule_charts.htm. It appears it is a violation of ethics to restrict an attorney from accepting engagement from a potential client or client. Simply, clients have actually set lawyers free in this regard.  It is no small irony that restrictive covenants, while permitted against doctors, are prohibited against attorneys under the theory that there should be no interference with a client’s choice for legal representation. See Georgia Rule of Professional Conduct 5.6. 

Q.   But what of “in-house” counsel?  

A.  The general view is that Rule 5.6 applies equally to in-house attorneys.    (“In the ban did not apply to in-house attorneys, and restrictions were permitted, then ‘the public would be restricted from access to lawyers who, by virtue of their background and experience, might be the best available lawyers to represent them’”).

So, lawyers are free from the restrictive and sometimes onerous burdens of noncompete provisions.  Good for us.