Does a non-compete clause in a lawyer's employment agreement violate RPC 5.6 if it expressly carves out the practice of law?

Plain-English summary

An attorney asked whether a non-compete provision in an employment agreement violated RPC 5.6(a). The clause barred the employee, for five years after employment ended, from owning, controlling, consulting with, contracting for, or being employed by a similar business, and from soliciting the company's customer accounts or operating in its trading area. But the clause also said that, as it related to the practice of law, it would be interpreted consistent with the Washington RPCs (including RPCs 5.6, 1.9, and 1.6), and that if a customer contacted the employee about legal representation, the employee was free to provide it consistent with the RPCs.

The committee answered that the provision dealt specifically with post-employment activities not related to the practice of law, and therefore did not violate RPC 5.6(a). It explained that RPC 5.6 prohibits employment agreements that restrict a lawyer's right to practice after the relationship ends, and that the policy behind the rule is twofold: such agreements limit a lawyer's professional autonomy and limit clients' freedom to choose a lawyer. The committee said the clause did neither, because it expressly stated that the RPCs control as to the practice of law and allowed the company's customers to contact the former employee about legal representation. On those terms, the provision did not violate RPC 5.6(a).

Currency note

This opinion was issued in 2005, 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 Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific provision mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee's conclusion turned on the clause's own carve-out. Because the agreement expressly stated that the RPCs control as to the practice of law and left the departing lawyer free to represent clients (including the company's customers who sought him out), the committee read it as restricting only non-law business activity and held that it did not violate RPC 5.6(a). The opinion analyzed the specific clause before it; a non-compete that actually restricted the lawyer's right to practice would implicate the rule's twin concerns of professional autonomy and client choice.

Common questions

Q: Does a non-compete in a lawyer's employment contract automatically violate RPC 5.6?

A: The committee did not say automatically. It held that this clause did not violate RPC 5.6(a) because it reached only non-law business activity and expressly preserved the lawyer's freedom to practice consistent with the RPCs.

Q: Why did this particular clause survive RPC 5.6?

A: The committee said the clause expressly stated that the Rules of Professional Conduct control as to the practice of law and allowed the company's customers to contact the former employee about legal representation, so it limited neither the lawyer's professional autonomy nor clients' freedom to choose a lawyer.

Q: What is the policy behind RPC 5.6?

A: The committee said it is twofold: agreements restricting a lawyer's right to practice after leaving employment limit the lawyer's professional autonomy and limit the freedom of clients to choose their lawyer.

Background and rules framework

The opinion interpreted RPC 5.6 (Model Rule 5.6, restrictions on a lawyer's right to practice), specifically RPC 5.6(a)'s bar on employment or similar agreements that restrict a lawyer's right to practice after the relationship ends. The committee framed the question around whether the clause restricted the practice of law itself or only unrelated business competition, and grounded its answer in the rule's twin policies of professional autonomy and client choice.

Citations and references

Rules of Professional Conduct:

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

See also

• ABA Formal Op. 94-381: Restrictions on Right to Practice
• ABA Formal Op. 06-444: Retirement Restrictive Covenants
• CA Op. 1988-104: Settlement Restricting Future Practice

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1344

Original opinion text

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

Advisory Opinion: 2100
Year Issued: 2005
RPC(s): RPC 5.6
Subject: Non-compete provision in employment agreement

QUESTION PRESENTED

The inquiring attorney submitted a letter dated May 17, 2005, regarding whether a non-compete provision in an employment agreement violates RPC 5.6(a). The clause in question provides in part as follows:

“For a period of five years after end of employment, the employee shall not directly or indirectly own, control, consult with, act as an independent contractor to, or be employed by any business similar to that conducted by the Company. As it relates to the practice of law, this provision shall be interpreted consistent with the Washington RPCs (or similar rules in other jurisdictions), including RPCs 5.6, 1.9, and 1.6. Employee shall not solicit any of the companys customer accounts or operate within the Companys general trading area. If a customer contacts the Employee about legal representation, Employee shall be free to provide legal representation consistent with the RPCs...”

ANSWER

The provision at issue deals specifically with a lawyer’s post-employment activities that are not related to the practice of law, thus, the provision does not violate RPC 5.6(a).

Discussion

Rule 5.6 prohibits employment agreements that restrict a lawyer’s right to practice after the termination of the relationship. Here, the express language of the “Restriction on Post Employment Competition” specifically states that the RPCs control, and that the “Employee” shall be free to provide post-employment legal representation consistent with the RPCs.

The policy behind RPC 5.6 prohibiting agreements restricting the right of lawyer to practice after leaving employment is twofold. First, such agreements limit a lawyer’s professional autonomy; and second, they limit the freedom of clients to choose a lawyer. The provision at issue does neither because it specifically states that as it (the provision) relates to the practice of law that the RPCs control, and it also allows for the “Company’s” customers to contact the former “Employee” regarding legal representation. Consequently, the provision does not violate RPC 5.6(a).