Ethics Opinion 129

Ethics Opinion 129

3.19.1970

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #129 – 03/19/1970 (7-70)

Topic: Restrictive Covenant Partnership Agreement
Digest: Partnership agreement may not restrict a lawyer after leaving partnership from accepting partnership clients except on retirement
Code: EC 2-26; 2-31, DR 2-108 (A)

QUESTION

May a partnership agreement restrict a lawyer after leaving the partnership from accepting employment by persons who were theretofore clients of the partnership?

OPINION

EC 2-26 provides in pertinent part:”in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment.”EC 2-31 provides in pertinent part:”Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved.”DR 2-108 (A) provides as follows:”A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.”See also ABA 300 (1961); ABA Inf. 910 (1966); N.Y. City 688 (1945); cf. ABA Inf. 521 (1962).A covenant restricting a lawyer after leaving the partnership from fully practicing his profession appears to this Committee to be an unwarranted restriction on the right of the lawyer to choose his clients in the event they seek his services and an unwarranted restriction on the right of the client to choose the lawyer he wishes to represent him. Accordingly, the Committee is of the opinion that it would be improper for a partnership agreement to contain such a restrictive covenant, except as a condition to payment of retirement benefits.