Though Fearnow v. Ridenour, Swenson, Cleer & Evans, 213 Ariz. 24 (2006) made it clear that ER 5.6 does not categorically prohibit all agreements imposing financial disincentives on a departing lawyer who continues to practice in competition with their previous firm, imposing a per-client fee on a departing associate directly interferes with client choice and is prohibited. This Opinion supersedes State Bar of Arizona Ethics Opinion 09-01.
When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts. These ethical obligations can best be satisfied through cooperation and planning for any departure.
A law firm may not employ associate lawyers using a contract that requires a departing associate to pay $3,500 to the law firm for each instance in which the departing associate continued to represent a law firm client. This requirement would violate the policy underlying ER 5.6 that puts the commercial interests of law firms secondary to the need to preserve client choice.
Superseded by EO-19-0006
A lawyer seeking to sell his or her solo law practice may disclose limited client-specific information to the prospective lawyer-buyer without client consent to the disclosure.
The selling lawyer must sell at least an entire legal area of practice throughout the geographic area or areas where that practice is being conducted. After the sale, the selling lawyer may be able to resume practicing law, depending on what part of the lawyer’s law practice was sold.
The selling lawyer may not seek through contractual provisions to avoid prohibitions in the Ethical Rules on his or her ability to practice law after the sale. Nonetheless, the parties may negotiate a covenant not to compete and/or a covenant not to solicit within the sale contract.
The selling lawyer may supplement his or her notice of sale to clients with additional information as long as the notice at least meets the requirements of ER 1.17.
Attorneys should not enter into county indigent criminal defense contracts that prohibit representation of those contract clients in related civil matters adverse to the county. [ERs 1.8(f), 5.6]
A departing lawyer may contact persons for whom the lawyer has provided legal services while employed by the former firm. The restrictions of ER 7.3(a) do not apply where the lawyer has had significant personal contact with those persons although the content of the communication remains subject to ER 7.1(a) and 7.3(d)(2), (3). Moreover, a solicitation letter sent to former clients is not subject to the requirements of ER 7.3(b), although it must conform to the advertising requirements of ER 7.1. Where the departing lawyer has had significant personal contact with a client in connection with the provision of legal services to that client by the firm, the lawyer has a mandatory duty under ER 1.4 to notify the client of his or her departure. The client must be provided with the opportunity to choose between going with the departing lawyer or remaining with the firm. As noted, there are potential legal issues associated with contacting clients served while employed by the former firm, which are outside the jurisdiction of the Committee, but which should be considered in connection with any communications. [ER 1.4, 5.6, 7.1, 7.3]
Ethical Rule 1.5(e) provides the exclusive framework for dividing fees among lawyers in different firms. Thus, a contract between a firm and its departing lawyers that purports to govern post-departure disposition of fees must comply with ER 1.5(e) or it is ethically unenforceable. Such contracts also cannot restrict a lawyer’s right to practice in violation of ER 5.6 (a). [ER 1.5(e), 5.6(a)]
Provisions in an attorney's severance agreement that impose confidentiality restrictions on the departing in-house counsel do not impermissibly restrict the attorney's ability to practice law in the future as long as the provisions merely reaffirm the requirements imposed by ER 1.6 on disclosure of confidential information. [ER 1.6, 5.6]
Settlement agreement which prohibits attorney from representing certain clients in the future, and required him to dismiss any Bar complaints he filed against other attorneys involved in the case.
Lawyer acquiescing in or recommending to a client a contingent fee contract with medical consulting service for expert testimony is improper.