At some point in his or her legal education, every law student discovers one of the more strikingly unique rules about the profession that he or she aspires to enter. Unlike laws governing physicians, accountants, engineers, and virtually all other professions, rules governing the practice of law impose a nearly absolute prohibition on lawyer non-compete agreements. At the same time, the law imposes on lawyers nearly ironclad obligations of confidentiality that generally do not apply to other types of professionals and business people.
Despite — or, perhaps, because of — these unique rules, protection of trade secrets in the legal profession poses unique challenges for both law firms and companies. In fact, during the past year, several cases delving into these topics have generated considerable buzz in the legal community, from Schlumberger Ltd.’s suit against its former deputy general counsel for alleged trade secrets theft to a widely publicized lawsuit by Elliott Greenleaf & Siedzikowski against a former partner for alleged hacking of computer files.
The irony, of course, is that attorneys are hired every day to enforce or seek to block enforcement of non-compete agreements and other post-employment restrictive covenants, yet they are not subject to such agreements themselves. Indeed, while no universal black letter law defines what lawyers can and cannot do in this regard, courts and bar associations facing this issue generally apply a balancing test to ensure that a lawyer’s conduct comports with the rules of professional conduct, that client interests are protected, and that there is promotion of fair and open opportunities for lawyer competition. These considerations apply whether the putative restriction applies to in-house or outside counsel. Nevertheless, the overwhelming weight of authority appears to be that attorneys—in-house or outside counsel—are not subject to post-employment restrictive covenants other than under the most exceptional circumstances.
On December 4, 2014, Seyfarth Shaw attorneys will discuss these timely issues at the American Intellectual Property Law (“AIPLA”) 2014 Trade Secret Law Summit in Santa Clara, California. At the summit, Erik Weibust (Boston) and Dan Hart (Atlanta) will present “Lawyer Mobility and Trade Secrets Protection: Restrictive Covenant, Confidentiality, and Non-Disclosure Considerations in the Legal Profession,” a paper they co-authored with Seyfarth associates Robyn Marsh (Chicago) and Andrew Masak (Atlanta). Among other topics, the presentation will discuss:
- ABA Model Rules of Professional Conduct 1.6 and 5.6 and their impact on lawyer mobility,
- Recent cases and ethical decisions (including ethics opinions from the State Bars of New York, New Jersey, Illinois, Washington, and other jurisdictions) on lawyer restrictive covenants,
- Application of ethical rules on lawyer non-competes in the in-house context, and
- Practical considerations for protecting trade secrets and enforcing restrictive covenants in the legal profession.
Registration and additional information about the event can be found here.