A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to the ABA Model Rule of Professional Conduct 5.6 (2002).

In 2002, the ABA amended paragraph (b) of the corresponding Model Rule to clarify that it applies to settlements not only between purely private parties, but also between a private party and the government. See ABA Ethics 2000 Commission Revision Notes to Model Rule 5.6 (2002) (citing ABA Formal Ethics Op. 394).

Comments to ABA Model Rule 5.6

[1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

Annotations

Law Firms and Restrictive Covenants

Paragraph (a) generally prohibits lawyers associated in a firm from entering into a post-termination noncompete agreement or other restrictive covenant–other than one incident to a lawyer’s retirement from law practice. La. Rules of Professional Conduct Rule 5.6(a) (2004); see also Restatement (Third) of the Law Governing Lawyers § 13(1) (2000). The purpose of this rule “is to ensure the client’s freedom to select counsel of his or her choice.” See Minge v. Weeks, 629 So. 2d 545, 547 (La. Ct. App. 4th Cir. 1993).

This rule also prohibits a firm from doing indirectly what it may not do directly. For example, it prohibits firms from imposing unreasonable financial disincentives on a departing lawyer that are intended to curtail that lawyer’s ability either to compete with the firm in the future, or to continue representing existing clients after termination. See Minge v. Weeks, 629 So. 2d 545 (La. Ct. App. 4th Cir. 1993) (holding that a firm may not require a departing lawyer to either leave clients with firm, or else pay 80% of any fee obtained through post-termination representation). Note that Rule 5.6 does not prohibit lawyers associated in a firm from agreeing that none will practice law “on the side,” that is, that none will practice other than for the benefit of the firm. Nevertheless, a firm may contractually require a departing lawyer to reimburse the firm for advances and expenses previously incurred by the firm on matters taken by the departing lawyer. See Warner v. Carimi Law Firm, 678 So. 2d 561 (La. Ct. App. 5th Cir. 1996).

Settlement Agreements Attempting to Restrict Practice

Paragraph (b) prohibits a lawyer from participating in any settlement negotiation or agreement in which a settlement term would restrict the right of any lawyer to practice law on behalf of any client. La. Rules of Professional Conduct Rule 5.6(b) (2004); see also Restatement (Third) of the Law Governing Lawyers § 13(2) (2000) (“[A] lawyer may not offer or enter into an agreement in settling a client claim restricting the right of the lawyer to practice law, including the right to represent or take particular action on behalf of other clients.”); ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-381 (1994). This rule exists not only to ensure that the public has access to capable lawyers, but also to avoid conflicts between a lawyer’s present clients and his personal interest in obtaining future clients. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-371 (1993). Note that this rule does not prohibit lawyers from entering into agreements restricting their right to use or reveal information relating to a particular matter. See ABA, Annotated Model Rules Professional Conduct at 497 (5th ed. 2003). Furthermore, it does not prohibit a lawyer from agreeing to a restriction on the lawyer’s right to practice law as part of the resolution of a disciplinary proceeding. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 95-394 (1995).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 5.6: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1992).

Notes

^*This page was updated on October 1, 2009.

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