US state says non-compete for in-house lawyers unethical

Contracts cannot restrict a practitioner's autonomy and a client's ability to choose representation

US state says non-compete for in-house lawyers unethical

It is unethical for Ohio lawyers working in-house to agree to a non-compete clause in their employment contracts, the Supreme Court of Ohio has advised.

In an opinion issued earlier this month, the Ohio Board of Professional Conduct, a quasi-judicial body appointed by the state supreme court, said that agreeing to a non-compete clause in employment contracts for in-house lawyers will restrict the autonomy of the practitioner and the ability of clients to choose their representation.

The board said that while reasonable non-compete clauses are generally enforceable in the state, these clauses clash with professional conduct rules for lawyers practicing in the state.

“A lawyer may not accept a contract for in-house employment that contains a covenant not to compete restricting his or her right to practice after separation of employment,” the board said.

The situation gets more complicated for in-house lawyers providing both business and legal functions. The board said that these lawyers should consider the impact of a non-compete clause on their future practice.

“In such a situation a lawyer may ethically execute an employment agreement with a restrictive covenant that also contains a clause that limits the covenant only to matters other than the practice of law,” the board said.

Other states have also previously ruled that non-compete clauses should not apply to lawyers working in in-house roles. Those states are Connecticut, Nevada, and New Jersey.

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