Opinion 2100

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 company`s customer accounts or operate within the Company`s 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).

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.