Can a law firm make an associate sign a non-compete? Rule 5.6 explained

Rule 5.6 is the ABA Model Rules' rule on restrictions on a lawyer's right to practice, and the model text states two separate prohibitions.

Under 5.6(a), a lawyer may not offer or make "a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement."

Under 5.6(b), a lawyer may not agree to "an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy."

The first is the non-compete prohibition; the second reaches settlement practice — a restriction on a lawyer's right to practice cannot be traded as part of resolving a client's controversy.

Notice who the model rule addresses: lawyers.

The partners and hiring attorneys who put a restrictive covenant in front of a candidate or a new partner are the people the rule speaks to — it regulates the making of the agreement, not just the contract's fate in court.

The rule's own comment explains the reasoning.

Comment [1]: "An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer."

Both halves of that sentence matter to a firm: the model rule treats the departing lawyer's autonomy and the client's choice of counsel as interests the covenant damages — not as terms the parties were free to negotiate between themselves.

One framing note before the details: the Model Rules are model texts — the frame our research works in is that states adopt them, with changes, and the version a state puts in force is what governs firms there.

We did not verify the ABA's adoption history or survey the states' adopted texts (the ABA's own pages were not retrievable when we researched), so this page will not tell you how your state's version departs.

This page describes the ABA's model text as our research verified it; the last section lays out exactly what we could and could not check.

These questions surface while hiring for your law firm, promoting an associate into partnership, or negotiating a way out of one.

The sections below take the agreements where they arise: the associate employment agreement, the partnership agreement, and the settlement.

Start with the plain case: a covenant that stops a departing associate from practicing law — at another firm, within a geography, for a set period.

That is an employment agreement that "restricts the right of a lawyer to practice after termination of the relationship," in the model rule's own words, and under 5.6(a) a lawyer may not offer or make it.

Under the model text this is not a gray area: an associate non-compete is the agreement Comment [1] describes when it explains why the ban exists.

"Enforceable" is the wrong lens for that clause.

Rule 5.6 is professional-conduct text, not contract doctrine: the model ban attaches to offering and making the agreement.

So the question a firm faces is not only whether a court would enforce the covenant later — it is whether the agreement may be offered at all.

On the model text, for an associate non-compete, the answer is no.

Client non-solicitation clauses are the harder half of the question.

The rule's wording is not limited to covenants labeled "non-compete": 5.6(a) reaches partnership, shareholders, operating, employment or other similar agreements that restrict the right of a lawyer to practice, and Comment [1] ties the ban to protecting clients' freedom to choose a lawyer — the same interest a clause meant to keep firm clients from following a departing lawyer touches.

But nothing our research verified resolves where a client non-solicit lands under Rule 5.6.

Treat it as a question for your state bar's ethics counsel rather than a settled safe harbor.

These are the provisions that never use the words "non-compete" and still restrict practice: a departing partner keeps their capital payout, deferred compensation or retirement distribution only if they do not join a competing firm.

The model text leaves a narrow opening here — the 5.6(a) ban carves out "an agreement concerning benefits upon retirement" — and the analysis turns on which side of that carve-out the money sits: an agreement concerning benefits upon retirement, which the exception permits, or a restriction on practice, which 5.6(a) bars.

The authorities collected on these departure-money questions are the ones our research could not verify.

The ABA's formal opinions 94-381, 06-444, 99-414 and 489 and California's Howard v. Babcock decision (1993) are the leads the research map flags on departure clauses, financial disincentives and client notice; the texts were paywalled or inconsistently archived when we researched, so this page does not summarize their holdings.

How your state treats a specific forfeiture provision — in the partnership agreement you are drafting, or the one a departing partner signed — is a question for your state bar's ethics counsel.

The model text contains one express exception, and the comments supply a second.

The 5.6(a) exception is "an agreement concerning benefits upon retirement" — the rule's own words, and the hook the forfeiture section above hangs on.

Comment [3] supplies the other: "This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17."

A firm selling a law practice under the sale rule works in a lane the comment marks as outside this Rule — a different situation from covenanting a departing associate.

What about provisions that never mention practice at all?

Read the operative sentence again: the 5.6(a) ban runs against an agreement that "restricts the right of a lawyer to practice after termination of the relationship."

Confidentiality obligations, reasonable notice periods and non-solicitation-of-employee clauses do not name a lawyer's right to practice, and the rule's text we verified does not name them.

That is a statement about the model rule's coverage, not a clearance: whether a specific confidentiality clause or notice requirement operates as a practice restriction in substance is not something our research verified, and your state's discipline authorities read their own adopted text.

Put the actual language in front of your state bar's ethics counsel.

And a scope line, because it comes up in the same conversation: the rule speaks to "the right of a lawyer to practice."

Paralegals, legal assistants and other nonlawyer staff are not lawyers, so on the rule's own words a restrictive covenant on a staff member is not what Rule 5.6 governs — our research reads those agreements as sitting under ordinary state contract and employment law instead.

Rule 5.6 travels as a model — the frame our research works in is that states adopt it, and the rule that actually governs your firm's covenants is the version your state has put in force.

This page describes the ABA's model text and the statutes cited below; a survey of each state's adopted Rule 5.6 text was not something our research verified, so it cannot tell you where your state departs from the model.

Here is exactly what our research checked: the ABA's model text of Rule 5.6 and its comments, two California statutes, and the FTC's status page for its noncompete rule.

It did not verify state-by-state amendments to Rule 5.6, the ABA's departure-clause opinions, or the holding of Howard v. Babcock.

So everything above is the model baseline and the cited statutes — your state's current version is unconfirmed here.

California shows how different the state layer gets.

Its Business and Professions Code 16600(a) voids every contract by which anyone is restrained from a lawful profession, trade or business, except as the chapter provides — statute language written for anyone, not for law firms alone.

Section 16600.5 adds that a void non-compete is unenforceable regardless of where or when it was signed, bars employers from entering into one, and makes doing so a civil violation.

California's Howard v. Babcock (1993) is the decision our research map lists on the departure questions named above — but the case text was not retrievable when we researched, so this page does not characterize its holding.

A firm with California lawyers or California partners is working under that statute layer — and the conduct-rule version California has put in force — not the model text alone.

Employer information, not legal advice. This page describes the ABA's model rule and the statutes it cites; the version your state has adopted controls. Confirm any restrictive covenant — for a lawyer or for staff — with your state bar's ethics counsel and your employment counsel before you use it.