5.6 Restrictions on the Right to Practice

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.


ADVISORY NOTE – AUGUST 2015

While subsection (a) of Rule 5.6 prohibits restrictions on the practice of law, Comment [3] clarifies such restrictions are not prohibited when used in connection with the sale of a practice pursuant to Rule 1.17. The recommended abrogation of Rule 1.17 and adoption of Rule 1.17A, Sale of Law Practice, is not meant to alter this position. Agreements for the sale of all or part of a practice may require the use of covenants not to compete in order to protect the buyer's interest. Such arrangements are still subject to the common law restrictions that Maine courts impose generally on non-competition agreements which prevent such restrictions from being any broader than needed to protect the buyer's legitimate interest.


COMMENT

[1] An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer. Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning retirement benefits for service with the firm.

[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.

[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.


REPORTER’S NOTES:

Model Rule 5.6 (2002), prohibiting agreements that restrict a lawyer’s right to practice law, is substantively in accord with M. Bar R. 3.2(g). Such agreements may have the effect of limiting the pool of lawyers available to the public, as well as affecting a lawyer’s autonomy and independence. The Task Force thought that Comment [3], recognizing that there may be restrictions attached to the sale of a law practice but such a sale is governed by another rule (Rule 1.17), highlighted an important related issue.

Because Model Rule 5.6 (2002) offers a clear articulation of the rule prohibiting restrictions on the practice of law, the Task Force recommended its adoption.