Ohio Board Advisory Opinion Op 90-014

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 90-14
Issued August 17, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: Under DR 2-108 (A), a lawyer may not be a party to or participate in a partnership
or employment agreement with another lawyer that restricts the right of a lawyer to practice law
after the termination of a relationship created by the agreement, except as a condition of payment of
retirement benefits. Such restrictive covenants unduly limit the freedom of clients to choose a
lawyer.
OPINION: We have before us your request for an advisory opinion on whether your firm and
members of your firm may participate in a non-competition agreement, which you included in your
letter.
Disciplinary Rule 2-108 (A) clearly prohibits any type of restrictive covenant or non-competition
agreement for use in partnership or employment agreements. The rule states "[a] lawyer shall not
be a party to or participate in a partnership or employment agreement with another lawyer that
restricts the right of a lawyer to practice law after the termination of a relationship created by the
agreement, except as a condition of payment of retirement benefits." Code of Professional
Responsibility, DR 2-108 (A). The Commentary to Model Rule 5.6, although not adopted in Ohio,
states that restrictions on lawyers after leaving a firm "not only limit their professional autonomy
but also limit the freedom of clients to choose a lawyer."
Furthermore, restrictive covenants or non-competition agreements among lawyers may lead to the
bartering of clients. ABA/BNA Lawyer's Manual on Professional Conduct 51:1201 (1984). As
lawyers, we must preserve a client's freedom to employ counsel of his or her choice. This freedom
outweighs a lawyer's interest in being protected against potential competition for clients. Id.
(citation omitted).

Op. 90-14 2
Restrictive covenants are permitted when entered into as a condition of payment of retirement
benefits. Typically, these agreements require forfeiture or suspension of retirement benefits if the
lawyer engages in competing employment.
In conclusion, it is our opinion and you are so advised that participation of a lawyer in a non-
competition agreement would be a violation of DR 2-108.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to the questions arising under the Code of Professional Responsibility.