A state supreme court recently rejected an attempt by a law firm to charge a departing associate attorney for lost “marketing expenses” when the associate took clients to a new firm. In Johnson Family Law, P.C. v. Bursek, the court refused to enforce a “reimbursement agreement” when a resigning associate took clients with him, concluding the agreement unreasonably restricted the attorney’s ability to practice law. The court reasoned that charging undifferentiated fees to departing attorneys substantially disincentivized lawyers from continuing their representation of clients. ABA Litigation Section leaders agree with the decision but note law firms may still be permitted to recover fees in limited circumstances. Litigation Section leaders further note that law firms can seek to retain associates—and thus clients—in other ways that do not run afoul of ethics rules.
