Right to Practice Law: Opinion 858

Opinion 858

Background: The inquiring attorney is in-house counsel for a corporation that provides regulatory and business services that are of a highly sensitive nature. The inquiring attorney has been asked to enter into the same confidentiality agreement imposed on all other employees as a condition of employment. The confidentiality agreement is to survive termination of employment for two years but excludes information that is previously acquired, public knowledge, or available from other sources. There is a savings clause contained in the confidentiality agreement requiring the agreement to be interpreted consistently with applicable rules of professional conduct.

Ruling: The central question in this inquiry is whether the restrictive covenant prohibits an attorney from practicing law. The confidentiality agreement purports to be consistent with the Rules of Professional Conduct via the savings clause. Therefore, a general counsel licensed in New York may ethically require staff attorneys to sign a confidentiality agreement that arguably extends staff attorney confidentiality obligations, after their employment ends, to information not otherwise protected as confidential information under the New York Rules of Professional Conduct, if the agreement makes plain that such confidentiality obligations do not restrict the staff attorney’s right to practice law after termination and do not expand the scope of the staff attorney’s duty of confidentiality under the rules.