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Anthony Davis Author Article, "Lateral Attorney Movement: Pre-Departure and Recruitment," in New York Law Journal

May 7, 2012

Our last column, on March 5, 2012, left off with a discussion of the recruitment and pre-departure obligations of an attorney moving laterally to another firm. This article picks up with the recruitment and pre-departure obligations of the departing lawyer's current and new firms.

Agreements
Current Firm. Be aware of the ethics rules and case law that prohibit entering into a contract forbidding departing lawyers from competing with the firm or soliciting clients after leaving the firm.

Under RPC 5.6(a), except in connection with retirement benefits, firms are not permitted to offer or make an "agreement that restricts the right of a lawyer to practice after termination of the relationship." Clearly, firms may not enforce a contract provision that forbids departing lawyers from competing with the firm or soliciting clients after leaving the firm. Further, indirect restraints on a lawyer's right to practice, such as imposition of negative financial consequences on lawyers who leave and compete with the firm, have been held to violate this rule.

Reprinted with permission from the May 7, 2012 issue of New York Law Journal. © 2012 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Hinshaw & Culbertson LLP is a U.S based law firm with offices in 11 states and London. The firm's national reputation spans the insurance industry, the professional services sector—including representation of law firms and lawyers—and other highly regulated industries, such as banking and finance and the debt collection sector. Hinshaw also provides a series of closely coordinated litigation, business advisory and transactional services to clients of all sizes as well as governmental and public sector entities.

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