Opinion 1953

The inquirer is a lawyer and a CPA employed by a CPA firm. The firm has asked that he sign an employment agreement with a noncompete clause. The clause would preclude him, if he terminates employment with the CPA firm, from providing similar tax-related services for twelve months from termination, as a lawyer, to any of the CPA firm’s clients or prospective clients. The lawyer declined to sign the agreement, but suggested a proviso acknowledging restrictions of RPC 5.6 prohibiting noncompetition agreements and exempting the practice of law from the scope of the noncompete clause.

The committee opined that the employer’s proposed noncompetition agreement would violate RPC 5.6’s explicit direction that ". . . a lawyer shall not participate in . . . making a[n] . . . employment agreement that restricts the rights of a lawyer to practice after termination of the relationship." The fact that the lawyer might only be subject to damages if he should violate the agreement still amounts to a restriction. The proposed additional clause that "these provisions shall in no way limit or restrict employee’s right to practice law" would cure the violation.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.