ETHICS OPINION 621-1974 RESTRICTIVE COVENANT. ANNOUNCEMENTS TO CLIENTS OF FORMER PARTNERSHIP.

NUMBER 621

QUESTION.

 

Is it proper for a lawyer to agree that upon his withdrawal from membership in a partnership he will not for a period of two years thereafter accept professional employment from any person who was a client of the partnership at the time he ceased being a member? If such agreement is improper, may the lawyer, after learning for the first time of its impropriety, and even though more than ten months have elapsed since his withdrawal from the. firm, send an announcement of his removal to a new location, to those clients of his former partnership for whom he had worked and with whom he had constant contact during the period of his partnership, and would it be proper for him to accept employment from such persons during the balance of the two year period?

 

ANSWER.

 

It is not proper for a lawyer to enter into what is in effect a restrictive covenant, DR 2-108(A) provides in substance that a lawyer shall not be a party to or participate in a partnership agreement with another lawyer that restricts the right of lawyer to practice law after the termination of the partnership, except as a condition to payment of retirement benefits.

 

In this connection EC 2-26 provides in substance that in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment; and EC 2-31 provides in substance that full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation, complete the work involved.

 

Reading these provisions together leads to the conclusion that a covenant restricting a lawyer after leaving a partnership from accepting employment by persons who were theretofore clients of the partnership, or from otherwise fully practicing his profession, is ‘an unwarranted restriction on the right of the lawyer to choose his clients in the event they seek his services, and an unwarranted restriction on the right of the client to choose the lawyer he wishes to represent him.’ N.Y. State 129 (1970).

 

In light of the answer to the foregoing, there is no valid objection to the lawyer involved accepting professional employment from persons who were clients of the partnership.

 

The ordinary rule with respect to announcements is as provided in DR 2-102(A)(2). A lawyer may send a brief professional card stating new or changed associations or addresses to, so far as is here applicable, his own clients and former clients, and to clients of his former firm with whom he had established a personal professional relationship, N.Y. State 83 (1968). The delay in sending the announcement is not in and of itself improper.

 

January 10, 1974.