In June 2022, Colorado’s Court of Appeals, Division I, in Johnson Family Law, P.C. v. Bursek, 515 P.3d 174 (Colo. 2022), issued a unique opinion of first impression on two grounds regarding Rule 5.6(a) of the Rules of Professional Conduct. This article will discuss the majority and the minority approach to Rule 5.6(a), which rule makes agreements between law firm and lawyers that “restrict[] the right of lawyers to practice after termination of the relationship” ethically impermissible. Although the case applies Colorado law, we believe it will be helpful and instructive to New York lawyers. See Colorado Rules of Professional Conduct Rule 5.6(a). This article also addresses the reason that the Colorado court found the majority rule unsatisfactory, and the significance of this decision for lawyers in New York and nationally.

The majority approach maintains that “even indirect restrictions on the practice of law, such as substantial disincentives such as financial disincentives, violate the language and the spirit” of Rule 5.6(a). See, e.g., Cohen v. Lord Day & Lord, 7 N.Y.2d 95 (1989). In Cohen, the New York Court of Appeals, while recognizing a law firm’s “legitimate interest” “in its own survival,” “economic well-being” and “maintaining its clients,” held that law firms “cannot protect those interests by contracting for the forfeiture of earned revenues during the withdrawing partner’s active tenure and participation and by, in effect, restricting the choices of the clients to retain and continue the withdrawing member as counsel.” Id. at 101 (italics in original) (citations omitted).