Of course. This is a critical and complex issue for any lawyer considering a move, especially within the high-stakes world of Big Law.

Here’s a detailed breakdown of non-compete issues in Big Law, covering the key concerns, the legal landscape, and practical steps to take.

The Core Issue: Why Non-Competes Are a Big Deal in Big Law

In most industries, a non-compete prevents you from working for a direct competitor. In Big Law, the restriction is often more severe: it can prevent you from practicing law in a specific geographic area and practice area for a period of time.

The primary mechanism for this is not always a standalone "non-compete agreement," but more commonly, the financial forfeiture provisions built into partnership agreements and the ethical rules governing the practice of law.

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1. The Primary Legal Framework: The "Right to Practice" Rule

The most important rule is American Bar Association (ABA) Model Rule of Professional Conduct 5.6.

• ABA Model Rule 5.6: "A lawyer shall not participate in offering or making... 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."


• Why This Matters: This rule exists to protect client choice and the professional mobility of lawyers. It generally makes outright non-compete clauses for lawyers unenforceable. A firm cannot contractually forbid you from hanging a shingle across the street.

2. The Big Law Loophole: Financial Disincentives (Forfeiture-for-Competition)

While an outright ban is prohibited, firms have found a powerful workaround through financial penalties. This is the "forfeiture-for-competition" clause.

• How It Works: These clauses are embedded in partnership and shareholder agreements. They state that if you leave and compete with the firm (e.g., by joining a rival firm or starting your own), you will forfeit certain financial benefits that you would otherwise be entitled to.


• What You Forfeit:


• Deferred Compensation: This is the big one. This can include capital account balances, accrued but unpaid draws, and, most significantly, your share of the firm's "unfinished business" (work you did but hasn't been billed/collected yet).


• Payouts from Retirement Plans: Some firm retirement plans are structured to be forfeited if you compete.

The Legal Test for Forfeiture Clauses: Courts generally uphold these clauses if they are "reasonable." Factors considered include:

• The duration of the restriction (e.g., 1-2 years is common).


• The geographic scope (e.g., the city or a specific radius).


• The practice area it covers.


• Whether the forfeiture is a reasonable estimate of the harm to the firm, not a punitive penalty.

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3. Other Critical Restrictions to Be Aware Of

Even without a non-compete, you are still bound by other powerful legal and ethical obligations:

• Duty of Loyalty: You cannot solicit your current firm's clients before you resign. You also cannot misappropriate firm property (which includes client information and client relationships).


• Client Solicitation (The "Side-Switching" Rule): After you leave, you are generally free to announce your new position and can even contact clients you personally represented at the old firm. However, the rules are strict about how this is done, and there is often a "cooling-off" period where you cannot actively solicit them. The old firm is entitled to protect its client relationships.


• Non-Solicitation of Colleagues: Almost all Big Law employment agreements include a clause preventing you from soliciting the firm's lawyers and staff to join you for a period (e.g., one year). These are generally enforceable.


• Confidentiality: This is a no-brainer, but you cannot take or use the firm's confidential information, including client lists, internal strategies, or billing data.

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4. The "Unfinished Business" Doctrine (The Jewel v. Boxer Problem)

This is a particularly thorny issue, especially when a large group departs or a firm dissolves.

• The Doctrine: This common law principle holds that a law firm's pending hourly legal matters are a form of partnership property. When a partner leaves, the old firm may have a claim to the profits from that "unfinished business" for a reasonable time.


• Modern Trend: Many jurisdictions, following the fallout from the Howrey and Heller Ehrman dissolutions, have rejected or limited this doctrine. Some states (like California) have passed laws essentially nullifying it. However, in other jurisdictions, it remains a live and significant risk.

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Practical Steps for a Big Law Lawyer Considering a Move

• Know Your Agreements: Before you even start looking, get and carefully review your:


• Employment Agreement


• Partnership/Shareholder Agreement


• Firm's Retirement and Deferred Compensation Plans


• Pay close attention to the "Restrictive Covenants" or "Withdrawal" sections.


• Quantify the Risk: Calculate exactly what you stand to lose if you trigger a forfeiture clause. Is it $50,000 in deferred comp or $500,000 in capital and retirement benefits? This number will heavily influence your negotiation and decision-making.


• Consult Your Own Counsel (Quietly): Do NOT use your firm's advice. Before you have any serious discussions with a new firm, hire an experienced legal ethics attorney who specializes in lawyer mobility. This consultation is confidential and is the single most important step you can take.


• Negotiate with Your New Firm: Top-tier lateral candidates (especially partners with a portable book of business) are in a strong position. The new firm will expect this issue and should be prepared to:


• Provide an Indemnity: They should contractually agree to cover any financial losses you incur from forfeiting compensation at your old firm.


• Pay a Signing Bonus: A portion of the signing bonus can be explicitly designated to cover these potential losses.


• Advance Litigation Costs: They should agree to cover the legal fees if your old firm sues to enforce the restrictions.


• Plan Your Departure Meticulously (with your counsel):


• Do not download client lists or confidential firm data.


• Do not solicit clients or colleagues before you resign.


• Prepare a professional resignation letter.


• Work with your new firm on a coordinated and ethical announcement plan for your clients after you have resigned.

Summary

Restriction Type	Is It Enforceable?	Key Takeaway
Outright Non-Compete	Generally NO (violates ABA Rule 5.6).	You cannot be banned from practicing law.
Financial Forfeiture	Often YES, if reasonable.	This is the real threat. It can cost you hundreds of thousands in deferred compensation.
Client Non-Solicitation	Limited enforceability.	You have a right to contact your clients, but strict ethical rules govern the process.
Colleague Non-Solicitation	Generally YES.	You cannot recruit your former team for a period of time (e.g., one year).

Bottom Line: You cannot be stopped from moving, but it can be made very expensive. The key is to understand your financial exposure, get expert advice early, and ensure your new firm has your back financially. For associates, the risks are lower but still present (often around bonus forfeiture). For partners, this is one of the most critical aspects of any lateral move.