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Restrictive Covenants May Raise Ethical Issues for Attorneys

Our colleagues Peter A. Steinmeyer, Erik W. Weibustand Angel A. Perezattorneys at Epstein Becker Green, co-authored a 2022 Thomson Reuters Practical Law Practice Note titled “Ethical Issues for Attorneys Related to Restrictive Covenants.”

Following is an excerpt (see below to download the full version in PDF format):

Companies across the US commonly use non-compete agreements and other restrictive covenants to protect the company’s legitimate business interests. These agreements are used with employees at all levels but often focus on those with access to the company’s trade secrets and confidential information. In-house attorneys, in particular, may take on non-legal, business roles that expose them to sensitive information that the company seeks to protect from competitors and public disclosure.

As attorneys switch firms or move in-house during their careers, they may be asked to sign non-competition, non-solicitation, and confidentiality agreements. Before entering into these agreements, attorneys should consider whether the agreements are permitted under their state’s professional ethics rules. This Note discusses some of the key ethical issues for attorneys to consider in the context of restrictive covenants.

While there is no set of national ethics standards, all states (except California) and the District of Columbia base their ethics rules on the American Bar Association’s (ABA) Model Rules of Professional Conduct (ABA Model Rules). This Note refers to both:

    • The ABA Model Rules because they reflect the basic framework for the standards of professional conduct applied across the country.
    • State rules of professional conduct (RPC), which are generally numbered to correspond to their ABA Model Rule corollaries. Many states have modified the ABA Model Rules, so attorneys should refer and adhere to their local ethics rules when considering whether specific agreements may trigger an ethics violation.

Read the full article, “Ethical Issues for Attorneys Related to Restrictive Covenants,” in PDF format.