Associate Alex Domingue’s article, “Don’t Take Risks with 5.6,” was published in the Louisiana Bar Journal October/November 2023 issue. In the article, Alex provides an analysis of rule 5.6 of the Louisiana Rules of Professional Conduct and its application for attorneys in Louisiana. As he notes in the article:
“Some narrowly tailored contractual financial provisions that protect a law firm’s interests and/or that of its client may be permissible. However, such provisions and contracts may not violate the public policy created by the non-competition statute generally and more specifically by Rule 5.6 of the Louisiana Rules of Professional Conduct.”
Don’t Take Risks with 5.6
With 23,241 attorneys in Louisiana, one area of Louisiana law that is particularly regulated is a lawyer’s ability and freedom to practice. With such a large number of attorneys, and consequently, many large law firms, the movement of attorneys among firms can raise the issue of practice restrictions between a law firm and an individual attorney. This issue relates to both the business arrangement between the attorney and the firm upon an attorney’s departure and the consequences of any financial obligations between the two of them.
Rule 5.6 of Louisiana’s Rules of Professional Conduct regulates this area. The Louisiana Supreme Court adopted this rule in its current form on Jan. 20, 2004, and it became effective in March of that year.3 Rule 5.6 provides:
A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship . . . (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
The policy justification behind such an absolute rule is to ensure that lawyers can practice freely and that clients are not restricted in choosing which attorney will represent them.5 Despite the rule’s seem- ingly clear language, its application can be perplexing due to the exception within the rule, the rule’s application alongside other Rules of Professional Conduct and its related jurisprudence. Although Rule 5.6 was drafted with good intent, prop- erly applying the rule can be complex.