Ohio Board Advisory Opinion Op. 20-01

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
OPINION 2020-01
Issued February 7, 2020
Covenant Not to Compete Offered to In-house Counsel
SYLLABUS: An in-house lawyer may not agree to an employment contract with a
covenant not to compete that would restrict the lawyer’s right to practice after separation
of employment.

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
HON. JOHN W. WISE
CHAIR
RICHARD A. DOVE
DIRECTOR
PATRICIA A. WISE
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2020-01
Issued February 7, 2020
Covenant Not to Compete Offered to In-house Counsel
SYLLABUS: An in-house lawyer may not agree to an employment contract with a
covenant not to compete that would restrict the lawyer’s right to practice after separation
of employment.
QUESTION PRESENTED: Whether a lawyer accepting employment as in-house
counsel performing a combination of both legal and business services may execute an
employment contract with a covenant not to compete. The covenant would prohibit the
lawyer from working for a business competitor for a term of 12-24 months after
separation of employment.
APPLICABLE RULES: Prof. Cond. R 1.4, 5.6
OPINION: Employment contracts between businesses and licensed professionals may
include a restrictive covenant preventing the employee from accepting employment with
a competitor for a period of time or within a geographic area. A covenant not to compete
is generally enforceable in Ohio if it is found to be reasonable. Raimonde v. Van Vlerah, 42
Ohio St.2d 21, 26, 325 N.E.2d 544 (1975). However, this legal standard is not applicable
to lawyers presented with a covenant not to compete by an employer. Prof.Cond.R. 5.6(a)
prohibits a lawyer from entering into an agreement that restricts his or her right to
practice law. The rule provides, in pertinent part:
A lawyer shall not participate in the offering or making:
(a) a partnership, shareholders, operating, employment, or other
similar type of agreement that restricts the right of a lawyer to

Op. 2020-01 2
practice after termination of the relationship, except an
agreement concerning benefits upon retirement.
An agreement that restricts the right of a lawyer to practice after leaving
employment limits the professional autonomy of the lawyer and the ability of clients to
choose their lawyer. Prof.Cond.R. 5.6, cmt. [1]. In a case involving conflicts-of-interest,
the Supreme Court of Ohio recognized that a strong public-policy interest exists in
permitting a party’s “continued representation by counsel of his or her choice.” Kala v.
Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 5-6, 1998-Ohio-439. Relying on Prof.
Cond. R. 5.6 and a prior Board advisory opinion, an Ohio appellate court has recognized
that a lawyer’s professional autonomy and a client's freedom of choice outweigh a
business’s interest in protecting itself from competition. Hackett v. Moore, 160 Ohio
Misc.2d 107, 2010-Ohio-6298 at ¶6, citing Adv. Op. 1991-3.
The prohibition in Prof.Cond.R. 5.6(a) has been interpreted as applying not only
to a lawyer’s employment in a traditional law firm setting, but also to situations involving
employment arrangements offered by clients. See generally, ABA Op. 94-381, ABA
Informal Op. 1301 (the right to practice law is granted by the state and cannot be restricted
by an agreement with a client restricting future employment.) Some jurisdictions have
specifically concluded that the client-lawyer relationship formed when a business or
corporation employs an in-house lawyer is subject to the prohibition contained
Prof.Cond.R. 5.6(a). Conn. Ethics. Op. 02-05 (2002), N.J. Ethics Op. 708 (2006).
The Board similarly concludes that an employment contract offered by a client that
restricts an in-house lawyer from providing legal services after separation from
employment implicates the prohibition in Prof.Cond.R. 5.6(a). Consequently, a lawyer
may not ethically agree to an employment contract with a covenant not to compete that
will restrict his or her future legal practice after separation of employment.
In-house counsel engaging in both legal and business services
Lawyers occasionally are hired by businesses in positions providing a combination
of both legal and business services. The prohibition in Prof.Cond.R. 5.6(a) applies to
restrictions on a lawyer’s provision of future legal services, but not to job functions the
lawyer may perform that do not constitute the practice of law. See Conn. Ethics. Op. 02-
05 (2002). A lawyer considering executing a contract with a covenant not to compete for
a position that will provide both legal and business services should consider the extent

Op. 2020-01 3
the agreement will prevent the lawyer from providing legal services after separation of
employment. As an alternative, a lawyer may execute an employment contract for an in-
house position that is drafted in a manner to permissibly restrict only those future
activities that do not constitute the practice of law. For example, the inclusion of a clause
in an employment contact limiting the covenant not to compete to matters other than the
practice of law allows the lawyer to ethically execute the contract without implicating the
prohibition in Prof.Cond.R. 5.6(a). Id.1
CONCLUSION: A restriction on the right of a lawyer to practice limits the professional
autonomy of the lawyer and ability of clients to select the counsel of their choice. A
lawyer may not accept a contract for in-house employment that contains a covenant not
to compete restricting his or her right to practice after separation of employment. In-
house lawyers providing both business and legal functions should consider the impact
of a restrictive covenant on their future practice. In such a situation a lawyer may
ethically execute an employment agreement with a restrictive covenant that also contains
a clause that limits the covenant only to matters other than the practice of law.
1 While beyond the scope of this opinion, Prof.Cond.R. 5.6(a) also prohibits lawyers from participating in
the drafting or offering of an employment contract that includes a covenant not to compete restricting
another lawyer’s right to practice.