道德意见241

对离职靠谱的滚球平台从事法律执业的罚款.C. Area

A partnership agreement imposes a delay of up to five years in paying out funds from a partner’s capital financial account where the partner leaves the partnership and engages in the practice of law in the Washington area. 这样的协议违反了规则5.6(a)对开设潜在竞争做法的处罚.

适用的规则

• 规则5.6(a)(法律执业权限制)

调查

Inquirer seeks an opinion concerning the propriety of delay in paying funds from a partner’s capital financial account where the partner leaves the partnership and engages in the practice of law in the District of Columbia metropolitan area.

The partnership agreement provides that a withdrawn partner is entitled to payments from his capital financial account over a five year period without interest beginning on the last day of the first fiscal quarter of the year following the date of withdrawal. 但是，它在下列情况下限制付款:

If a Withdrawn Partner who is otherwise entitled to receive payments prior to age 65 pursuant to the section of this Agreement captioned “Payments for Withdrawn Partners” engages in the private practice of law in the metropolitan District of Columbia area, 该等付款应延迟至(i)该等终止合伙人年满65岁之日, (ii) the date such Terminated Partner ceases to engage in the private practice of law as aforesaid or (iii) five years after the date such payments were otherwise scheduled to commence pursuant to the section of this Agreement captioned “Payments for Withdrawn Partners.”

询问者寻求关于这项规定是否违反规则5的意见.6(a).

讨论

规则5.6提供了:

靠谱的滚球平台不得参与要约或者要约
(a) A partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, 有关退休福利的协议除外; . . .

第5条执行部分用语.第6条-“限制靠谱的滚球平台执业的权利”-与前《靠谱的滚球平台》条款的措词相同, 博士2 - 108 (A).

委员会经常被要求界定公司限制权力的范围, 通过合伙或雇佣协议, 离职靠谱的滚球平台之间的竞争. 意见181, 委员会对前《靠谱的滚球平台》条文的目的进行了彻底的审查, 判例法分析, 美国靠谱的滚球平台协会的意见和先前委员会的决定. It concluded that these decisions “demonstrate a general hostility toward restrictive [employment] agreements and persuade this Committee that it should carefully examine any such agreements that come before it.” The reasons are twofold: to protect the ability of clients to obtain lawyers of their own choosing and to enable lawyers to advance their careers. 哥伦比亚特区靠谱的滚球平台执业性质的变化, 哪一个的特点是酒吧规模的显著增长, 开设外地商行的分支机构，放宽有关招揽和广告的规定, 所有这些都加强了限制靠谱的滚球平台流动的必要性.

The Committee has twice before held that employment and partnership agreements imposing direct financial penalties for practicing in a competing or potentially competing firm amount to forbidden restrictions on the right to practice. 意见书65, 委员会认为，前《靠谱的滚球平台》第2-108(A)条禁止有这方面要求的就业协议, 离开后两年, the departed lawyer pay to the former firm 40% of net billings deriving from clients previously represented by the firm. 在意见194中, the Committee found impermissible a provision that reduced by half the payment of unrealized accounts receivable if the departing partner opened any competitive practice within twelve months. 这些决定是一致的 灰色v. 马丁, 663 P.2d 1285(或. 1983), 两次被委员会引用(第181和194号意见), where the court refused to enforce a clause in the partnership agreement eliminating the payments a partner was otherwise entitled to receive if the lawyer practiced in any of three designated counties.

相比之下, 不因参赛而处罚靠谱的滚球平台的财务安排不违反规则5.6. 第221号意见, the Committee considered an agreement used by a firm engaged in plaintiff personal injury litigation that specified the division of potential contingent fees in cases unresolved at the time of an attorney’s departure from the firm.¹ The Committee held that to the extent the arrangement was simply an effort to establish a fair split based on work performed, the agreement was permissible; an excessive share to the firm would, 然而, 相当于限制行医的权利.

委员会只支持对执业权利的一种限制. These are reasonable—not absolute—limitations on the departing lawyer’s solicitation of clients of the departing firm. 第77和97号意见, the Committee upheld employment agreements prohibiting an associate leaving a firm from seeking to solicit business from clients of the firm, 除了直接征求之外，合伙人可以自由邮寄公告吗. The Committee recognized that the rule in each instance did constitute a restriction on the former associate’s ability to obtain clients, but believed that solicitation of current clients raises special concerns that warranted at least regulation of the manner of such solicitations. 然而，正如委员会经常决定的那样(看,e.g., 意见181和221), 即使是在直接招揽公司客户的情况下, 在正在进行的关系中，哪些方面的干扰问题是最敏感的, 公司可能只施加最狭隘的限制.

这里的协议违反了规则5.6. The financial penalties imposed on a departing lawyer serve no other purpose than restricting practice and insulating the firm from potential competition. 该协议显然不鼓励合伙人与前公司竞争, 甚至不能代表客户, by forcing the partner to forego the payments otherwise payable for up to five years if the partner practices law in the Washington area.

有人可能会争辩说，这里的协议规定了延迟付款，而不是取消或减少付款, 所以不像在其他情况下那么麻烦. 即使不考虑可能存在的巨额风险和靠谱的滚球平台因延误而付出的代价, 该条款的广泛适用无疑对开设竞争性做法起到了威慑作用. It thus represents a restriction on the right to practice to limit competition even as to potential future clients of the firm. The fact that the restriction ends automatically if the terminated partner ceases the private practice of law reinforces this conclusion.

The Committee concludes that a partnership agreement that delays for five years payments otherwise due a departing partner from the partner’s capital financial account if the partner engages in the practice of law in the Washington area is prohibited by 规则5.6. 

调查没有. 92-7-20
通过:1993年9月21日

1. 例如, the agreement provided that if the client had retained the firm two years before the lawyer’s departure and resolved within a year of departure, 该公司将获得75%的费用. If the firm had been retained only a year before the lawyer’s departure and the case was not resolved for two to three years thereafter, 该公司将获得55%的费用.