In Zammit v. Hobson & Hobson, P.C., a law firm sued several departed lawyers for breaching an employee non-solicitation covenant.[1] The firm alleged that the lawyers violated a non-solicitation policy that prohibits soliciting or inducing other employees of the firm to leave, including other lawyers, when they leave for a competing firm.[2]
The defendants filed a motion to dismiss.[3] They argued the employee non-solicitation policy was unenforceable because it violated Georgia Rules of Professional Conduct (GRPC) 5.6.[4] GRPC 5.6 governs restrictions on the right of a lawyer to practice after termination of employment.[5]
In affirming the denial of the motion to dismiss, the Georgia Court of Appeals held that no evidence existed at that stage to determine whether the policy restricted the lawyers’ rights to practice after leaving the firm.[6]
Notably, the court held “we do not find that employee non-solicitation policies categorically violate GRPC 5.6.”[7] Therefore, the court affirmed the trial court’s denial of the motion to dismiss.[8]
Attorney Non-Solicitation Agreements: How Do Other States Compare?
Georgia courts aren’t the only ones addressing whether attorneys can recruit their co-workers when they leave a firm. For example, in Minc, LLC v. Andrew Stebbins, et al., a federal court in Ohio was faced with interpreting a similar employee non-solicitation agreement.[9] The employee accepted a position at another law firm.[10] Between accepting the offer and notifying his employer of his resignation, he began recruiting another associate from his law firm.[11]
Like most states, Ohio Rule of Professional Conduct 5.6 prohibits employment agreements that “restrict[] the right of a lawyer to practice” after the employment relationship ends.[12] The Ohio court found that such an agreement violates both Rule 5.6 and Ohio public policy by restricting “the right of the attorney to practice law, the right of attorney autonomy, or the right of a client to choose the attorney of his or her choice.” [13]
In Franklin D. Azar & Assocs. v. Ngo, the Court of Appeals of Colorado interpreted the rule more narrowly.[14] In Ngo, a law firm sued its employee for attempting to take the firm’s entire class action department to another law firm.[15] Most notably, the employee sent presentations to other law firms about the department while she was still employed.[16]
Like Georgia and Ohio, Colorado Rule of Professional Conduct 5.6(a) prohibits “restrict[ion of] the right of a lawyer …. to practice after termination of the relationship.”[17] However, the Colorado court found that employee non-solicitation agreements do not violate this rule when they apply to conduct occurring before the attorney leaves the law firm.[18]
Conclusion
The interplay between GRPC 5.6 and the use of restrictive covenants by law firms remains an interesting topic. The Georgia Court of Appeals, addressing the issue at the pleading stage, interpreted the Rule to not categorically prohibiting employee non-solicitation covenants.
However, similar Rules in other states have been interpreted differently. Law firms should investigate this issue or seek advice of counsel before implementing or enforcing employee non-solicitation covenants.
Alexandra Zimmer contributed to this article. Alexandra is a 3L at Emory University School of Law and was a 2024 summer associate at BFV.
[1] Zammit v. Hobson & Hobson, P.C., 904 S.E.2d 23, 25 (Ga. Ct. App. 2024).
[2] Id.
[3] Id.
[4] Id. at 27.
[5] Ga. R. Prof. Cond. 5.6(a).
[6] Id. at 28.
[7] Id.
[8] Id.
[9] Minc, LLC v. Andrew Stebbins, et al., No. 22-cv-1655 (N.D. Ohio Sept. 4, 2024).
[10] Memorandum Opinion and Order at 4, Minc, LLC v. Andrew Stebbins, et al., No. 22-cv-1655 (N.D. Ohio Sept. 4, 2024).
[11] Id.
[12] Ohio R. Prof. Cond. 5.6(a).
[13] Id. at 16, 21.
[14] Franklin D. Azar & Assocs. v. Ngo, No. 2024 COA 99 (Colo. App. Sept. 5, 2024).
[15] Order at ¶ 4, Franklin D. Azar & Assocs. v. Ngo, No. 2024 COA 99 (Colo. App. Sept. 5, 2024).
[16] Id.
[17] Colo. R. Prof. Cond. 5.6(a).
[18] Order at ¶ 23, 28, Franklin D. Azar & Assocs. v. Ngo, No. 2024 COA 99 (Colo. App. Sept. 5, 2024).
Benjamin Fink is known for his work in noncompete, trade secret and competition-related disputes. A shareholder at Berman Fink Van Horn, Ben concentrates his practice in business and employment litigation.
