Can Lawyers Be Required To Give Advance Notice before Departing? Perhaps Not, Says American Bar Association

| Rachel F. Cotton

Resigning woman

As readers of this blog know, corporate executives (and regular employees) are often subject to non-competes in their employment agreements, as well as other provisions designed to ensure that if they leave their job, they will not be able to work for a competitor for some period of time.  By contrast, law firms are ethically prohibited from imposing such restrictive covenants on their attorneys.  The justification for this exceptionalism is the premise that clients have the right to choose their counsel and any restrictions on a lawyer’s right to practice could impede that choice.  (Of course, why client choice is more imperative in an attorney/client relationship than other professional relationships of trust has always been a bit vague.)

ABA Model Rule of Professional Conduct 5.6 sets out the general prohibition on restrictions on a lawyer’s right to practice. Rule 5.6(a) states that a lawyer shall not enter into a “partnership, shareholders, operating, employment, or similar type of agreements that restricts the right of a lawyer to practice after termination of the relationship….”

Despite this rule, most law firm agreements impose some kind of “notice period” on departing attorneys, requiring them to give notice well in advance of their departure.  Although such provisions are common, law firms frequently choose not to enforce them or shorten the time period.  Recent news articles, however, have suggested an uptick in law firms’ attempts to enforce long notice periods on their departing attorneys.  (See, e.g. here, here, here and here).

Given that notice periods implicate Rule 5.6, there has always been a question about their enforceability, particularly when the notice period is lengthy.  On Wednesday, in Formal Opinion 489, the ABA Standing Committee on Ethics and Professional Responsibility came out swinging against them.  The ABA said that, although a “reasonable” notification period may be included in firm partnership/employment agreements to allow for a smooth transition, “these notification periods cannot be fixed or rigidly applied without regard to client direction, or used to coerce or punish a lawyer for electing to leave the firm, nor may they serve to unreasonably delay the diligent representation of a client.”  The opinion goes on to say that departing lawyers “may not be held to a pre-established notice period particularly where, for example, the files are updated, client elections have been received, and the departing lawyer has agreed to cooperate post-departure in final billing.”

This blow to the enforceability of notice periods may remove one more weapon from a law firm’s arsenal to discourage lawyers from leaving.  Although many law firm departures are not contentious, the opinion may embolden lawyers to refuse to abide by notice periods even in instances where the law firm insists upon one.

Long live Rule 5.6.