Washington Lawyer - July/August 2021 - 39

TAKING THE STAND
associated with the second firm (see Legal
Ethics Opinion 352), and those requirements
may make it difficult or unattractive to handle a
particular case, the lawyer could avoid some of
the practical barriers that bilateral conflict attribution
creates because the conflicts from the
second firm may not be attributed to the
lawyer's original firm. Of course, the client and
the matter still have to pass a conflicts check
from the original firm, but not at both. The
lawyer's original firm still must insist on full disclosure
about the single case because it must
complete a conflicts check.
But suppose the lawyer declines to provide
information about the new matter, or the other
firm declines to provide its entire client list.
May the original firm prohibit the lawyer from
taking on the new matter, and, if he insists on
it, fire the lawyer? The lawyer will contend that
the firing is just a roundabout way to enact
an anti-moonlighting policy. The original firm
will contend that it did not create a workplace
policy that prohibited moonlighting; it merely
required the lawyer to allow the firm to meet
its ethical duties by supporting a robust conflict-checking
mechanism and fired the lawyer
for disregarding those obligations. After all, the
act forbids anti-moonlighting clauses but does
not require an employer to enable or support
it. And the employee still bears an obligation
to answer all work-related questions from his
employer.5
Restrictions on Subsequent Practice. NonCompete
2020 also prohibits an absolute ban
on working for another employer in subsequent
employment, but that bar will add
almost nothing to the limits already in the
Rules. Rule 5.6(a) forbids a lawyer from entering
into an agreement " that restricts the rights of a
lawyer to practice after termination of the relationship,
except an agreement concerning
benefits upon retirement. " The D.C. Court of
Appeals recently interpreted that provision to
invalidate a provision of a partnership agreement
that imposed a substantial penalty for
taking firm clients upon departure.6
The ethics
rule, which prohibits an agreement imposing
any " restriction, " thus sweeps more broadly
than Non-Compete 2020, which merely forbids
a complete prohibition.7
One open question remains: Does NonCompete
2020 prohibit a partnership agreement
from denying retirement benefits to a
partner who departs to work in another firm,
even though the ethics rules permit it? At first
glance, the answer seems to be no since NonCompete
2020 forbids only a complete prohibition;
it does not seem to prohibit a " restriction, "
such as the denial of " benefits upon retirement. "
If the agreement denying retirement
benefits does not violate Non-Compete 2020,
enforcement of the agreement would not
violate section 102(d)(2) of Non-Compete
2020, which prohibits retaliation only for the
" employee's alleged failure to comply with a
non-compete provision . . . made unlawful by
this title. " The new act will not add anything
beyond what the ethics rules currently require.
As Non-Compete 2020
forbids any policy that
prohibits " [p]erforming work
or providing services for pay
for another person, "
it may prevent law firms
from having such
policies for any District
of Columbia lawyer.
Outside Affiliations for Lawyers. NonCompete
2020 may affect one form of law
firm policy. Some firms prohibit lawyers from
working for another firm at all or from devoting
less than full time and attention to the firm's
business; such a policy thus prohibits some
non-legal work for another entity. Some firms
prohibit lawyers from serving on corporate
boards for clients, which might introduce liability
exposure, sticky issues of attorney-client
privilege that arise concerning the lawyer's
communications with other board members,
and potential future limitations on conflicting
work. As Non-Compete 2020 forbids any policy
that prohibits " [p]erforming work or providing
services for pay for another person, " it may
prevent law firms from having such policies for
any District of Columbia lawyer. Firms may wish
to create internal disincentives to such outside
affiliations without establishing policies or
agreements that flatly prohibit them.
CONCLUSION
While we have explored some of the most
important overlaps and differences between
Non-Compete 2020 and the ethics rules, we
have not touched on the complications that
moonlighting might present for firms. For
example, there is the issue of maintaining the
confidentiality of client information from the
original firm or supervising lawyers who work
in more than one setting, not to mention issues
created by subsequent regulations that will be
issued under the act. Those, however, are questions
for another day.
Alan D. Strasser is a partner at Robbins, Russell,
Englert, Orseck & Untereiner LLP whose practice
includes advising on legal ethics and employment
law.
NOTES
1 The act defines an employee as " an individual
who performs work in the District on behalf of
an employer, " with exceptions not relevant to law
firm employees. There remains the question of
whether partners - or at least equity partners -
are employees rather than owners under the act.
2 A statute will not repeal the common law unless
its language plainly requires it. District of Columbia
Pub. Sch. v. District of Columbia Dep't of Emp't Servs.,
95 A.3d 1284, 1288 (D.C. 2014).
3 Of course, the other firm faces the same problem,
since the conflicts attribution goes the other
way, too. All the clients of the original firm would
become clients of the second firm for conflicts
purposes. Nothing requires the original firm to
disclose its clients to the firm where its lawyer
wants to moonlight; it may not even be ethically
permitted to disclose some representations.
But without those disclosures, neither firm can
perform an adequate conflicts check. And while
Non-Compete 2020 forbids a workplace policy
that prohibits moonlighting, the act allows an
employer to forbid an employee from disclosing
customer or client lists or " the employer's
confidential, proprietary, or sensitive information. "
Section 101(5).
4 Rule 1.7(b).
5 The employee may face professional discipline
for concealing information as well. See " Ethics
Tip: Moonlighting, " ABA Center for Professional
Responsibility (April 2015).
6 Jacobson Holman, PLLC v. Gentner, 19-CV-830
(DCCA Feb. 4, 2021).
7 Of course, a workplace policy that barred
subsequent employment by someone who is no
longer an employee would hardly be enforceable.
JULY/AUGUST 2021
* WASHINGTON LAWYER 39
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