The summer marks the end of the year for bar association ethics committees. This year, the New York State Bar Association Committee on Professional Ethics addressed the question of whether—and, if so, under what circumstances—lawyers or law firms may enter into agreements that are intended to or have the effect of limiting lawyers’ rights to move between law firms. NYSBA 1151 (May 1, 2018) is entitled “Restrictive Covenants on Lawyers.” The ethics committee of the North Carolina State Bar recently explored a similar topic, in Formal Ethics Opinion 2017-5, entitled “Agreement Not to Solicit or Hire Lawyers from Another Firm As Part of Merger Negotiations” (the “North Carolina Opinion”). This article will compare the conclusions and, perhaps more significantly, the approach and underlying reasoning of the two opinions. Finally, this article will briefly consider another recent opinion of the New York State Bar Association Committee on Professional Ethics, notable because of its idiosyncratic subject matter regarding permissible law firm names.

The ethics opinions addressing restrictions on lawyer mobility contend with similar provisions in these states’ rules of professional conduct (RPC) that prohibit a lawyer from participating in offering or making a partnership, shareholder, operating, employment, or other type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. In North Carolina the rule is RPC 5.6 (a), and the comparable rule in New York is RPC 5.6(a)(1).