Bar Counsel Notes: Restriction on right to practice - non compete.

Your law firm is about to hire an associate attorney. You are putting together the employment contract to present to her. Is it appropriate for you to include a covenant for her not to compete against you or any other attorneys at your law firm in any family law matters (her specialty) in the event her employment at your firm goes sour and she leaves?

No, do not include any such language. Although Advisory Opinion #126 (1992) states that such agreements are not prohibited under the Code of Professional Responsibility, that opinion was later made obsolete and superseded by the Court's promulgation of Maine Bar Rule 3.2(g)(1) in 1997. Under that Bar Rule, an attorney shall not offer or make a partnership or employment agreement that restricts the right of another attorney to practice after termination of that employment relationship, except as a condition to receive post-termination payments/benefits. Therefore, you should stay clearly away form using any contract language that at all tries to restrict that attorney's practice should she later leave employment at your firm.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.