Can Lawyers Sign Noncompetes?

As reported by Law360, a Philadelphia-based law firm, Swartz Campbell LLC, recently sued a competing Philadelphia firm, The Chartwell Law Offices LLP, alleging that Chartwell essentially stole one of Swartz’s offices located in Fort Myers, Florida, including a partner and two employees.  Swartz contends that the partner is subject to a partnership agreement that requires a four-month notice before he can leave the firm, but the partner provided notice and left Swartz in July.  He allegedly took an associate, a paralegal, and the office’s electronic files with him.  The partner also allegedly has contacted his clients about his transition.  Swartz alleges that Chartwell knew about the partnership agreement and went ahead with the plan anyway.  It has brought multiple claims against Chartwell, including for tortious interference, unfair competition, misappropriation, and civil conspiracy.

Although the case apparently does not involve a noncompete agreement, it raises an interesting question: can lawyers agree not to compete with one another?  In general, the answer in Massachusetts is no.  Massachusetts Rule of Professional Conduct 5.6(a) states that “[a] lawyer shall not participate in offering or making a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.”  The notes for the rule explain that the rule protects a lawyer’s professional autonomy and allows clients to choose the lawyers they want.  The rule does not apply when a lawyer sells a law practice.  It’s not clear whether the agreement in the Swartz case would survive this rule because the agreement in that case apparently only requires notice.  But even if the agreement did survive, a court might nevertheless view the case as an end run around the rule and the policies supporting it.

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