The Ohio Board of Professional Conduct (the Board) recently issued an advisory opinion that in-house attorneys cannot agree to non-competition agreements that prohibit the lawyer from practicing law after leaving a company. In its opinion, the Board distinguished between a lawyer’s role in providing legal services and a lawyer’s role in providing business services. The Board advised that while lawyers cannot enter into non-competes that restrict the right to practice law, they can enter into agreements restricting them from providing business services to a competitor.
In issuing its opinion, the Board relied primarily on Ohio Rule of Professional Conduct 5.6(a) and Ohio case law. Rule 5.6(a) provides that “[a] lawyer shall not participate in the offering or making . . . [an] agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement.” The Board also recognized Ohio case law holding that there is a strong public policy interest in allowing people to choose their own legal representation. Rule 5.6(a), coupled with this public policy, has led Ohio courts to conclude that a lawyer’s professional autonomy and a client’s right to choose his or her representation outweigh any company’s business interest in restricting competition.
It is important to note that this opinion does not invalidate confidentiality agreements or non-competition agreements restricting only non-legal, business services. Ultimately, in-house counsel and companies should ensure that any non-compete agreements between them do not restrict the in-house counsel from providing future legal services, even to a competitor. Entering into such an agreement would violate Rule 5.6(a) and Ohio public policy and would likely be unenforceable.
Taft's Employment and Labor Relations practice takes a pragmatic approach to non-competition agreements. We present management with options, including a candid assessment of the legal and practical risks associated with each one. Our team is experienced in designing non-competition agreements that comply with local, state and federal law. If you have any questions as to how the changes in the law will affect you, please contact us.