All In The (Modern) Family
The ABA Journal reports on an interesting decision of the Colorado Supreme Court
When attorney Grant Bursek left employment with Johnson Family Law, P.C., d/b/a Modern Family Law (“MFL”), eighteen of the firm’s clients followed, preferring to maintain the attorney-client relationship they had established with him. MFL subsequently sought to enforce an agreement that required Bursek to pay an undifferentiated per-client fee for continued representation of these clients. Bursek now argues that this per-client fee violates the Colorado Rules of Professional Conduct, which prohibit attorneys from making employment agreements that “restrict[] the right of a lawyer . . . to practice after termination of the relationship.” Colo. RPC 5.6(a). We agree. There may be circumstances in which a firm can seek reimbursement of specific client costs when the client leaves a firm to follow a lawyer. But a firm may not require a departing attorney to pay an undifferentiated fee in order to continue representing clients who wish to maintain their relationship with that attorney. Such an agreement is an impermissible restriction on the attorney’s right to practice and on the clients’ right to counsel of their choice, both of which are important policy interests protected by Colorado Rule of Professional Conduct 5.6.
Rationale
An agreement that requires a lawyer to pay a former firm such an undifferentiated fee is fundamentally at odds with the twin policy goals of Rule 5.6(a): to protect lawyers’ professional autonomy and to ensure that clients have the freedom to choose an attorney. As the Ethics Advisory Committee of the Arizona Supreme Court recognized when considering a similar agreement, it “acts as a substantial disincentive for the departing lawyer to agree to continue representing a client who wants to continue working with that lawyer.” Sup. Ct. of Ariz. Att’y Ethics Advisory Comm. Ethics Op. EO-19-0006 (2020)…Of particular concern, such a fee forces attorneys to make individualized determinations of whether a client is “worth” retaining and incentivizes them to retain clients in high-fee cases and to jettison clients with less lucrative claims. This direct intrusion on the attorney-client relationship is quite different from financial disincentives that might indirectly affect client choice by making it more costly for an attorney to leave a firm. No reasonableness analysis is needed to determine that per-client fees of the sort at issue here violate Rule 5.6(a).
(Mike Frisch)