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Ethics 2000 - February 2002 Report


A lawyer shall not participate in offering or making:

(a) a partnership or , shareholders, operating, employment , or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy between private parties.


[1] An agreement restricting the right of partners or associates lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

Model Rule 5.6

Reporter's Explanation of Changes


1. Paragraph (a): Add references to shareholders, operating and other similar types of agreements

The reference to a partnership agreement is underinclusive because lawyers also practice in professional corporations and professional limited liability companies.

2. Paragraph (b): Substitute "client controversy" for "controversy between private parties"

This change clarifies that the Rule applies to settlements not only between purely private parties, but also between a private party and the government. See ABA Ethics Opinion 394.


[1] "[P]artners and associates" has been replaced with "lawyers" in recognition that lawyers associate together in organizations other than traditional law firm partnerships.