SUPREME COURT OF ARIZONA
En Banc
WILLIAM D. FEARNOW and ELIZABETH ) Arizona Supreme Court
FEARNOW, ) No. CV-05-0217-PR
)
Plaintiffs-Appellees, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 03-0650
)
RIDENOUR, SWENSON, CLEERE & ) Maricopa County
EVANS, P.C., ) Superior Court
) No. CV98-019171
Defendants-Appellants. )
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Anna M. Baca, Judge
The Honorable Colin F. Campbell, Judge
VACATED AND REMANDED
Opinion of the Court of Appeals, Division One
210 Ariz. 256, 110 P.3d 357 (2005)
VACATED
________________________________________________________________
PAUL G. ULRICH P.C. Phoenix
By Paul G. Ulrich
Pamela B. Petersen
Attorneys for William D. and Elizabeth Fearnow
OSBORN MALEDON P.A. Phoenix
By Mark I. Harrison
Thomas L. Hudson
Diane M. Meyers
Attorneys for Ridenour, Swenson, Cleere & Evans, P.C.
________________________________________________________________
H U R W I T Z, Justice
¶1 Ethical Rule (“ER”) 5.6(a) of the Arizona Rules of
Professional Conduct prohibits an “agreement that restricts the
right of a lawyer to practice [law] after termination of [a law
firm] relationship.” Ariz. R. Sup. Ct. 42 (2006). This case
involves the application of ER 5.6(a) to a shareholder agreement
requiring a departing lawyer to tender his stock to a
professional corporation for no compensation if he thereafter
competes with the corporation in the practice of law. We hold
that such an agreement does not violate ER 5.6(a), but rather
should be evaluated under the well-established law governing
similar restrictive covenants in agreements between non-lawyers.
I.
¶2 In 1987, William Fearnow paid $33,674.42 for a law
firm partnership interest. Four years later, the partners
decided to wind down the firm. Several partners, including
Fearnow, formed a new firm, Ridenour, Swenson, Cleere & Evans,
P.C. (“RSCE”). See Ariz. Rev. Stat. (“A.R.S.”) §§ 10-2201 to -
2249 (2004) (governing professional corporations) (hereinafter
“the Professional Corporations Act” or “the Act”). The former
partners made no new capital contributions to RSCE; rather,
their original partnership contributions were converted to
stock. Fearnow was thus deemed to have paid $33,674.42 for one
share of RSCE stock.
¶3 Fearnow and the other RSCE shareholders signed a
Shareholder Agreement (“Agreement”). The Agreement generally
provided for the repurchase of a lawyer’s stock for the original
2
subscription price upon disability, retirement, withdrawal, or
expulsion from the firm. Separate provisions in the Agreement
(collectively, the “voluntary withdrawal provisions”) required a
shareholder voluntarily withdrawing and thereafter competing in
the firm’s “geographic area for more than ten hours per week” to
“tender his or her Share back to the Corporation for no
compensation.”1
¶4 In 1998, Fearnow voluntarily left RSCE to join another
Phoenix firm. Fearnow demanded $33,674.42 for his RSCE stock.
RSCE refused, citing the voluntary withdrawal provisions.
Fearnow sued, alleging that the provisions violated ER 5.6(a).
¶5 The parties filed cross-motions for summary judgment.
The superior court held that the voluntary withdrawal provisions
violated ER 5.6(a) and were therefore unenforceable. Because
the Agreement had no severability clause, the court held the
entire contract invalid. The trial court then found Fearnow to
be a “disqualified person” as defined by the Professional
Corporations Act, see A.R.S. § 10-2201(1), and ordered a
1
The Agreement provides that “[o]ther than retirement, a
Stockholder who withdraws from the Corporation shall tender his
or her Share to the Corporation for no compensation.” In turn,
the Agreement defines retirement from the “private practice of
law” as not “engaging in any lawyering activity in competition
with the Corporation and within the Corporation’s geographic
area for more than ten hours per week.” Collectively, these
provisions bar repurchase if the shareholder voluntarily
withdraws from the firm and then engages in the defined
competition.
3
valuation of his stock pursuant to A.R.S. § 10-2223. The
superior court ordered RSCE to repurchase the stock for $86,500.
¶6 The court of appeals affirmed in part and reversed in
part. Fearnow v. Ridenour, Swenson, Cleere & Evans, P.C., 210
Ariz. 256, 110 P.3d 357 (App. 2005). The court found the
voluntary withdrawal provisions unenforceable, but held that
Fearnow was not a “disqualified person” entitled to redemption
of his stock under the Act. Id. at 262 ¶ 32, 110 P.3d at 363.
¶7 Fearnow petitioned for review and RSCE filed a
conditional cross-petition. We granted review of both petitions
because the issues presented are of first impression and
statewide importance. We have jurisdiction pursuant to Article
6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-
120.24 (2003).
II.
A.
¶8 As a general rule, a contract restricting the right of
an employee to compete with an employer after termination of
employment “which is not unreasonable in its limitations should
be upheld in the absence of a showing of bad faith or of
contravening public policy.” Lassen v. Benton, 86 Ariz. 323,
328, 346 P.2d 137, 140 (1959), modified on other grounds, 87
Ariz. 72, 347 P.2d 1012 (1959); see also 15 Corbin on Contracts
§ 80.15 (2003) (noting that in determining the enforceability of
4
such a provision, “reasonableness is the North Star”). Such a
restrictive covenant is unreasonable if “(a) the restraint is
greater than is needed to protect the promisee’s legitimate
interest, or (b) the promisee’s need is outweighed by the
hardship to the promisor and the likely injury to the public.”
Restatement (Second) of Contracts § 188 (1981).
¶9 The determination of “[r]easonableness is a fact-
intensive inquiry that depends on the totality of the
circumstances.” Valley Med. Specialists v. Farber, 194 Ariz.
363, 369 ¶ 20, 982 P.2d 1277, 1283 (1999). “Each case hinges on
its own particular facts.” Bryceland v. Northey, 160 Ariz. 213,
217, 772 P.2d 36, 40 (App. 1989). As the court of appeals has
noted,
[w]hat is reasonable depends on the whole subject
matter of the contract, the kind and character of the
business, its location, the purpose to be accomplished
by the restriction, and all the circumstances which
show the intention of the parties.
Gann v. Morris, 122 Ariz. 517, 518, 596 P.2d 43, 44 (App. 1979).
¶10 Most of our cases concerning the enforcement of
restrictive covenants deal with “non-compete” agreements, under
which an employee is prohibited from competing with the former
employer in a geographic area for a period of time. See, e.g.,
Farber, 194 Ariz. at 365 ¶ 3, 982 P.2d at 1279 (finding
unreasonable a covenant between physicians forbidding
competition within a five-mile radius of any medical office
5
owned by the former employer for three years); Lassen, 86 Ariz.
at 328, 346 P.2d at 140 (finding reasonable a provision
prohibiting competition for five years within a twelve-mile
radius of a veterinarian’s former employer). We have, however,
employed the same fact-based reasonableness analysis to
determine the enforceability of agreements under which a
departing employee is not entirely forbidden to compete. See
Olliver/Pilcher Ins., Inc. v. Daniels, 148 Ariz. 530, 715 P.2d
1218 (1986). Olliver/Pilcher involved an “anti-piracy”
agreement forbidding solicitation of the former employer’s
customers. Id. at 531, 715 P.2d at 1219. While recognizing
that such a provision is “less restrictive than a covenant not
to compete,” id. at 531, 715 P.2d at 1218, we reiterated that
“‘the test of validity of restrictive covenants is one of
reasonableness,’” id. at 532, 715 P.2d at 1219 (quoting Lessner
Dental Labs. v. Kidney, 16 Ariz. App. 159, 160, 492 P.2d 39, 40
(1971)).2
2
Other courts have adopted a similar approach to agreements
imposing restrictions less onerous than covenants not to
compete. See, e.g., Tatom v. Ameritech Corp., 305 F.3d 737, 745
(7th Cir. 2002) (holding that a forfeiture provision will be
enforced as long as it is reasonable); Pollard v. Autotote,
Ltd., 852 F.2d 67, 72 (3d Cir. 1989) (applying a reasonableness
test to determine if a forfeiture-for-competition provision in a
management incentive compensation plan is enforceable); Harris
v. Bolin, 247 N.W.2d 600, 603 (Minn. 1976) (holding a forfeiture
clause unenforceable as unreasonable); Brockley v. Lozier Corp.,
488 N.W.2d 556, 563 (Neb. 1992) (holding that penalties in
profit sharing plans can be enforced only when reasonable).
6
B.
¶11 Were Fearnow not an attorney, the voluntary withdrawal
provisions would be subject to a fact-based reasonableness
analysis. This Court, however, has adopted a rule governing the
ability of lawyers to enter into certain types of agreements.
That rule, ER 5.6, provides:
A lawyer shall not participate in offering or
making:
(a) a partnership or employment agreement that
restricts the rights of a lawyer to practice after
termination of the relationship, except an agreement
concerning benefits upon retirement; or
(b) an agreement in which a restriction on the
lawyer’s right to practice is part of the settlement
of a controversy between private parties.
Such restrictions are prohibited because they limit a lawyer’s
“professional autonomy” and interfere with “the freedom of
clients to choose a lawyer.” ER 5.6 cmt.
¶12 The Arizona Rules of Professional Conduct, of which ER
5.6 is part, are based on the 1983 Model Rules of Professional
Conduct promulgated by the American Bar Association (“ABA”).
See Ariz. R. Sup. Ct. 42 (providing that the professional
conduct of State Bar members shall be governed by the ABA Model
Rules, as amended by this Court). But even before the ABA
adopted Model Rule 5.6(a), its Committee on Professional Ethics
had issued several opinions condemning non-compete agreements
among lawyers under previous Canons of Professional Ethics.
7
Those opinions stressed the same themes as the current
commentary to ER 5.6 – lawyer autonomy and client choice. See,
e.g., ABA Comm. on Prof’l Ethics, Formal Op. 300 (1961) (finding
a non-compete agreement improper under Canon 7 (forbidding
encroachment on the business of another lawyer), Canon 27
(prohibiting solicitation), and Canon 35 (protecting client
confidences)); ABA Comm. on Prof’l Ethics, Informal Op. 1072
(1968) (stating that covenants not to compete “interfere with
and obstruct the freedom of the client in choosing and dealing
with his lawyer” and that an “attorney must remain free to
practice when and where he will and to be available to
prospective clients who might desire to engage his services”).
These opinions led to the adoption in 1969 of Disciplinary Rule
(“DR”) 2-108 of the Model Code of Professional Responsibility,3
which in turn was incorporated into Rule 5.6 of the 1983 Model
Rules without substantive change.
¶13 ER 5.6 categorically forbids lawyers from making an
“agreement that restricts the right of a lawyer to practice
after the termination of [a law firm] relationship,” ER 5.6(a),
or a settlement agreement containing “a restriction on a
lawyer’s right to practice,” ER 5.6(b). Neither ER 5.6 nor
3
Informal Opinion 1171 (1971) held that an agreement
prohibiting a departing attorney from working with law firm
clients violated DR 2-108. Informal Opinion 1417 (1978) held
that an agreement prohibiting a departing partner from hiring
away firm associates violated DR 2-108.
8
prior ABA opinions, however, expressly deals with agreements
that do not restrict a lawyer’s right to practice or compete,
but rather impose only some financial disincentive for doing so.
Such provisions are before us today.
C.
¶14 In analyzing the voluntary withdrawal provisions, we
write on a clean slate. No prior opinion of this Court has
applied ER 5.6(a). We did, however, discuss ER 5.6 in Farber,
which involved a covenant not to compete among physicians. In
that case, we analogized the importance of a patient’s right to
choose a doctor to the need for a client to be free to choose an
attorney. 194 Ariz. at 368 ¶¶ 16-17, 982 P.2d at 1282. Citing
ER 5.6, we stated that “restrictive covenants are prohibited
between attorneys,” id. at 369 ¶ 18, 982 P.2d at 1283, and that
“public policy considerations preclude their applicability,” id.
(quoting Dwyer v. Jung, 336 A.2d 498, 500 (N.J. Super. Ct. Ch.
Div. 1975) (quotation marks omitted)). We concluded that the
doctor/patient relationship, like the attorney/client
relationship, “is special and entitled to unique protection.”
Id. ¶ 19. We did not, however, find the covenant in Farber
invalid as a matter of law. Expressly declining the invitation
to hold such agreements between physicians “void per se as
against public policy,” id. ¶ 19 n.1, we instead examined the
covenant for reasonableness, id. ¶ 19.
9
¶15 The above-quoted dicta from Farber support the
conclusion that agreements violative of ER 5.6(a) will not be
enforced. Cases from other jurisdictions so hold, finding void
agreements that expressly forbid attorneys from representing
particular clients or competing in a specific geographic area
for a specified period of time. See, e.g., White v. Med. Review
Consultants, Inc., 831 S.W.2d 662, 664-65 (Mo. Ct. App. 1992)
(upholding a rule prohibiting the restriction of a lawyer’s
right to practice); Dwyer, 336 A.2d at 501 (finding void as
against public policy a covenant prohibiting departing attorneys
from working with partnership clients).
¶16 The case law is less clear, however, when the covenant
does not categorically forbid competition or representation of
former clients, but rather provides only a financial
disincentive that may discourage the departing lawyer from doing
so. Many courts hold such provisions void. For example, in an
oft-quoted opinion, the New York Court of Appeals refused to
enforce a law firm partnership agreement that conditioned the
payment of earned but uncollected partnership revenues upon a
withdrawing partner’s refraining from competing with the firm.
Cohen v. Lord, Day & Lord, 550 N.E.2d 410, 410 (N.Y. 1989). The
court reasoned:
[W]hile the provision in question does not expressly
or completely prohibit a withdrawing partner from
engaging in the practice of law, the significant
10
monetary penalty it exacts, if the withdrawing partner
practices competitively with the former firm,
constitutes an impermissible restriction on the
practice of law. The forfeiture-for-compensation
provision would functionally and realistically
discourage and foreclose a withdrawing partner from
serving clients who might wish to continue to be
represented by the withdrawing lawyer and would thus
interfere with the client’s choice of counsel.
Id. at 411. Other jurisdictions have reached similar results on
similar reasoning.4
¶17 There is, however, a strong opposing view, articulated
principally by the California courts. The seminal case is
Haight, Brown & Bonesteel v. Superior Court, 285 Cal. Rptr. 845
(Ct. App. 1991), which involved a provision requiring
withdrawing attorneys competing with the law firm to forfeit
capital investments and accounts receivable. Construing an
ethical rule quite similar to ER 5.6,5 the court found that the
4
See, e.g., Jacob v. Norris, McLaughlin & Marcus, 607 A.2d
142, 148 (N.J. 1992) (refusing to enforce a provision
withholding termination benefits for departing attorney who
competes with firm); Katchen v. Wolff & Samson, 610 A.2d 415,
419 (N.J. Super. Ct. App. Div. 1992) (finding that the
challenged provision “has the effect of discouraging competition
and forces an attorney to decide whether he should stay with a
firm that admittedly fairly compensates him or leave the firm at
a financial risk to himself in order to better serve his
clients”); Gray v. Martin, 663 P.2d 1285, 1290 (Or. Ct. App.
1983) (refusing to enforce a contract preventing a withdrawing
attorney from receiving termination benefits if the attorney
continues to practice in certain counties).
5
The rule at issue, Rule 1-500 of the Rules of Professional
Conduct of the State Bar of California, provided as follows:
11
provision was not prohibited because it did “not expressly or
completely prohibit the [attorneys] from engaging in the
practice of law, or from representing clients.” Id. at 848.
The court noted that the rule “simply provides that an attorney
may not enter into an agreement to refrain from the practice of
law.” Id. The rule does not
prohibit a withdrawing partner from agreeing to
compensate his former partners in the event he chooses
to represent clients previously represented by the
firm from which he has withdrawn. Such a construction
represents a balance between competing interests. On
the one hand, it enables departing attorneys to
withdraw from a partnership and continue to practice
anywhere within the state, and to be able to accept
employment should he choose to so do from any client
who desires to retain him. On the other hand, the
remaining partners remain able to preserve the
_________________________
(A) A member shall not be a party to or participate in
offering or making an agreement, whether in connection
with the settlement of a lawsuit or otherwise, if the
agreement restricts the right of a member to practice
law, except that this rule shall not prohibit such an
agreement which:
(1) Is a part of an employment, shareholders’, or
partnership agreement among members provided the
restrictive agreement does not survive the
termination of the employment, shareholder, or
partnership relationship; or
(2) Requires payments to a member upon the
member’s retirement from the practice of law; or
(3) Is authorized by Business and Professions
Code sections 6092.5, subdivision (i) or 6093.
(B) A member shall not be a party to or participate in
offering or making an agreement which precludes the
reporting of a violation of these rules.
12
stability of the law firm by making available the
withdrawing partner’s share of capital and accounts
receivable to replace the loss of the stream of income
from the clients taken by the withdrawing partner to
support the partnership’s debts.
Id. at 848.
¶18 Three years later, the California Supreme Court held
that “an agreement among law partners imposing a reasonable toll
on departing partners who compete with the firm is enforceable.”
Howard v. Babcock, 863 P.2d 150, 151 (Cal. 1994). The provision
at issue required departing attorneys who worked with other
departing attorneys in competition with the law firm to forfeit
all withdrawal benefits; departing attorneys who worked on their
own but competed with the law firm were required to forfeit
seventy-five percent of their benefits. Id. Howard was decided
against a backdrop of California statutes favoring non-compete
agreements. Id. at 154. But the decision did not turn on those
statutes; the court expressly noted that it had the “power to
impose a higher standard of conduct on lawyers” through ethical
rules. Id. at 155. The California Supreme Court concluded,
however, that its ethical rule was not “intended to . . .
prohibit the type of agreement that is at issue here.” Id. at
155-56. Howard found a critical distinction between an
agreement imposing disincentives against competition and one
forbidding competition:
13
An agreement that assesses a reasonable cost against a
partner who chooses to compete with his or her former
partners does not restrict the practice of law.
Rather, it attaches an economic consequence to a
departing partner’s unrestricted choice to pursue a
particular kind of practice.
Id. at 156.
¶19 Recognizing that law firms have an obligation to
protect their own economic interests and their investments in
training and promoting partners, Howard found “no legal
justification for treating partners in law firms differently in
this respect from partners in other business and professions.”
Id. at 157. Such an approach, the court noted, would “have no
deleterious effect on the current ability of clients to retain
loyal, competent counsel of their choice.” Id. at 156-57.
Thus, Howard concluded that a contract provision that did not
prevent a departing lawyer from competing was not void on its
face, but rather would be evaluated for reasonableness. Id. at
160.6
6
See also Pettingell v. Morrison, Mahoney & Miller, 687
N.E.2d 1237, 1240 (Mass. 1997) (stating that a financial penalty
may be valid if it is a “reasonable recognition of a law firm’s
financial loss due to the departure of a partner”); McCrosky,
Feldman, Cochrane & Brock, P.C. v. Waters, 494 N.W.2d 826, 828-
29 (Mich. Ct. App. 1992) (finding financial disincentive
provisions valid because they were “not so overreaching that
they amount to an actual restriction on the defendant’s right to
practice law”); Capozzi v. Latsha & Capozzi, P.C., 797 A.2d 314,
320 (Pa. Super. Ct. 2002) (finding that a forfeiture clause must
meet the reasonableness standard used to evaluate non-compete
clauses involving other professionals).
14
D.
¶20 We find the reasoning of Howard compelling. ER 5.6
prohibits only an agreement “that restricts the right of a
lawyer to practice” law after termination of employment with a
firm. (Emphasis added.) It is one thing for this Court, in its
supervisory capacity over the legal profession, to adopt a
limited exception to the general rule construing restrictive
covenants for reasonableness when confronting a contract the
terms of which forbid a lawyer from engaging in practice or
representing certain clients. It is quite another, as Howard
notes, to completely “distinguish lawyers from other
professionals such as doctors or accountants, who also owe a
high degree of skill and loyalty to their patients and clients.”
Howard, 863 P.2d at 160.7 We are unable to conclude that the
interests of a lawyer’s clients are so superior to those of a
7
See Anderson & Steele, Ethics and the Law of Contract
Juxtaposed: A Jaundiced View of Professional Responsibility
Considerations in the Attorney-Client Relationship, 4 Geo. J.
Legal Ethics 791, 846 (1991):
Whether the fulcrum for balancing interests of clients
over those of their lawyers is a narcissistic concept
of ourselves as paragons of professional propriety –
as super-fiduciaries – or the absurdly conflicting
notion that good lawyers are hard to find, we wonder
how much longer these outmoded, unrealistic concepts
can be used to deny attorneys fair access to the norms
of the marketplace, restricted only by the same rules
applicable to doctors, to ministers, to accountants,
and to all other fiduciary-based professions.
15
doctor’s patients (whose choice of a physician may literally be
a life-or-death decision) as to require a unique rule applicable
only to attorneys. The language of ER 5.6 does not support such
a sweeping special treatment of lawyers, nor does protection of
clients mandate such a result.8
¶21 We therefore decline to read ER 5.6(a) in the
expansive fashion suggested by Fearnow. Although the rule
prohibits – and we will hold unenforceable – agreements that
forbid a lawyer to represent certain clients or engage in
practice in certain areas or at certain times, its language
should not be stretched to condemn categorically all agreements
imposing any disincentive upon lawyers from leaving law firm
employment. Such agreements, as is the case with restrictive
covenants between other professionals, should be examined under
the reasonableness standard.9
8
It is difficult to see how client choice is significantly
impacted by our reading of ER 5.6(a). The client is of course
free to remain with the lawyer, whether or not the lawyer
chooses to stay at his original firm or go elsewhere.
9
Neither the comments to the ABA Model Rules nor the
Restatement compel a contrary conclusion. The comments to the
ABA Model Rule 5.6 are simply silent on the topic today before
us. Restatement (Third) of the Law Governing Lawyers § 13(1)
(2000) simply states, in language virtually identical to the
text of ER 5.6(a), that a lawyer may not “enter into a law-firm
agreement that restricts the right of the lawyer to practice law
after terminating the relationship.” The commentary to § 13
recognizes that a majority of courts have construed this
language as encompassing agreements imposing financial penalties
on departing lawyers who decide to compete, id. cmt. a., but
16
E.
¶22 The Shareholder Agreement requires a withdrawing
attorney engaging in “lawyering activity in competition with the
Corporation and within the Corporation’s geographic area” to
forfeit his or her stock in the professional corporation. The
provisions do not restrict the lawyer’s right to practice law
after termination. Rather, they merely provide a lawyer who
withdraws and decides to practice elsewhere with less money than
others making different decisions.
¶23 Because the superior court held that the voluntary
withdrawal provisions were void as a matter of law, it did not
construe the provisions for reasonableness. The court of
appeals, even assuming that the case was governed by the more
permissive standard of Howard, found the provisions unreasonable
as a matter of law because they required Fearnow to forfeit his
entire capital contribution even if he took no RSCE clients.
Fearnow, 210 Ariz. at 259 ¶ 17, 110 P.3d at 360.
¶24 As an initial matter, we note that RSCE claims that
Fearnow did take clients with him upon his departure; the court
of appeals’ observation that the voluntary withdrawal provisions
might be unreasonable when applied to a lawyer who took none is
_________________________
also acknowledges that other courts and commentators have
reached a different interpretation of the rule. See id.,
Reporter’s Note.
17
thus not dispositive.10 More importantly, because the case was
decided on summary judgment under the superior court’s view of
ER 5.6(a), RSCE never had the opportunity below to present facts
concerning the reasonableness of the provisions. Nor has
Fearnow had the opportunity to present evidence that these
particular provisions are unreasonable. Because “[e]ach case
turns on its own particular facts,” Bryceland, 160 Ariz. at 217,
772 P.2d at 40, we cannot conclude as a matter of law whether
the voluntary withdrawal provisions are reasonable. We remand
to allow the superior court to address the reasonableness of the
voluntary withdrawal provisions.11
III.
¶25 The second issue before us is the appropriate remedy
if the voluntary withdrawal provisions are found unreasonable.
10
Even if a departing lawyer takes no clients, some level of
financial penalty for withdrawal could conceivably be reasonable
if, for example, the firm undertook capital expenditures or
hired associate attorneys based on the presence of the former
partner, or if the departure imposed costs in changing the firm
name and related marketing materials.
11
In determining the reasonableness of the voluntary
withdrawal provisions, the superior court may consider that no
financial penalty is imposed on withdrawing members who do not
compete in the stated geographic area. But even if such
discrimination might tend to show the unreasonableness of the
voluntary withdrawal provisions, we are unable today, on the
record before us, to conclude that this fact alone renders the
provision automatically unreasonable as a matter of law.
Rather, the question is whether there is a reasonable basis for
such discrimination, an issue that turns on the particular facts
of each case.
18
The superior court held that Fearnow was entitled to redemption
of his stock under the Professional Corporations Act as a
“disqualified person.” The court of appeals disagreed, holding
that Fearnow has no such statutory remedy as long as he is
licensed to practice law. Fearnow, 210 Ariz. at 260 ¶ 23, 110
P.3d at 361.
¶26 We agree with the court of appeals. Section 10-
2201(1) defines a “disqualified” person as “an individual or
entity that is not or ceases to be a qualified person”; section
10-2201(7) in turn defines a “qualified person” simply as “a
person that is eligible under this chapter to be issued shares
by a professional corporation.” As the court of appeals
correctly noted, section 10-2220(A)(1) allows issuance of shares
to “[i]ndividuals who are licensed by law in this or another
state to render a professional service described in the
corporation’s articles of incorporation.” At all times relevant
to this case, Fearnow was licensed to practice law in Arizona.
He therefore is not a “disqualified person.”12
¶27 Vinall v. Hoffman, 133 Ariz. 322, 651 P.2d 850 (1982),
upon which Fearnow relies, is not to the contrary. That case
12
Had Fearnow been a disqualified person, the proper
procedure under the Professional Corporations Act would be to
first allow the corporation an opportunity to present a fair
value offer for repurchase of the share. A.R.S. § 10-2224. A
valuation proceeding is required only if the corporation refuses
to make an offer or after the disqualified person rejects the
offer. A.R.S. § 10-2225(A).
19
involved a prior version of the Professional Corporations Act,
which required the repurchase of stock after the “resignation”
of a shareholder. Id. at 323, 651 P.2d at 851 (citing former
A.R.S. § 10-909(D) (repealed 1995)). Our holding in Vinall that
the word “resignation” meant resignation from the corporation,
not the profession, is therefore of no aid in interpreting the
present version of the Professional Corporations Act, which
triggers the right to repurchase upon “disqualification.”
¶28 But it does not follow, as the court of appeals held,
that Fearnow must retain his RSCE stock until his retirement or
disqualification to practice law. The Professional Corporations
Act provides that “[a] provision for the acquisition of shares
contained in a professional corporation’s articles of
incorporation or bylaws or in a private agreement is
enforceable.” A.R.S. § 10-2223(A). Therefore, should the
voluntary withdrawal provisions be eventually found
unreasonable, the next question is whether the Agreement
nonetheless requires the acquisition of Fearnow’s shares.
¶29 The superior court held that because the Agreement had
no severability clause, Fearnow had no contractual remedy. The
court of appeals, while disagreeing with the superior court’s
conclusion that Fearnow was entitled to repurchase of his stock
under the Professional Corporations Act, did not address whether
the Agreement itself provided a remedy. Fearnow, 210 Ariz. at
20
262 ¶ 29 n.8, 110 P.3d at 363 n.8 (stating that “we merely hold
that there is not a remedy under the Act that provides for the
mandatory repurchase of such shares as long as the departing
shareholder remains licensed”).
¶30 Although the Agreement has no severability clause, we
believe that the contract nonetheless requires repurchase of
Fearnow’s share for his original subscription price if the
voluntary withdrawal provisions are deemed unenforceable. Under
the Agreement, any shareholder who becomes permanently disabled,
retires from the practice of law, is expelled from the law firm,
or voluntarily withdraws must tender his or her stock to the
corporation. In all cases but one, that tender is made in
return for the original subscription price. Only the partner
who voluntarily withdraws and competes with the firm in a stated
geographic area is forced to tender stock for no compensation.
¶31 Although “we will not permit courts to add terms or
rewrite provisions” to covenants, Farber, 194 Ariz. at 372 ¶ 31,
982 P.2d at 1286, “Arizona courts will ‘blue pencil’ restrictive
covenants, eliminating grammatically severable, unreasonable
provisions,” id. ¶ 30. In this case, the voluntary withdrawal
provisions are severable from the balance of the agreement. The
contracting parties plainly contemplated that all departing
shareholders would be required to return their stock to RSCE.
The Agreement also provides that all but those choosing to
21
compete would receive their original subscriptions in return for
the stock. If the only exceptions to the rule – the voluntary
withdrawal provisions – are unenforceable, the severability of
those provisions is plainly “evident from the contract itself.”
Olliver/Pilcher, 148 Ariz. at 533, 715 P.2d at 1221.
¶32 Therefore, if the superior court concludes on remand
that the voluntary withdrawal provisions are unreasonable, it
should order RSCE to repurchase Fearnow’s share for $33,674.42,
his original subscription price.
IV.
¶33 For the reasons above, we vacate the opinion of the
court of appeals, vacate the judgment of the superior court, and
remand to the superior court for further proceedings consistent
with this opinion. Because we do not yet know which party will
ultimately be successful in this matter, we decline to award
either party attorneys’ fees either under the Agreement or under
A.R.S. § 12-341.01.13
_______________________________________
Andrew D. Hurwitz, Justice
13
Fearnow has also requested fees under A.R.S. § 10-2226.
That provision, however, applies only to an
evaluation/repurchase proceeding required by the Professional
Corporations Act, and cannot be invoked here in light of our
conclusion that Fearnow is not a “disqualified” person under the
Act.
22
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
B A L E S, Justice, concurring in part and dissenting in part
¶34 The law firm in this case seeks to impose a penalty of
$33,674 on an ex-partner merely because he competed with the
firm for clients. Exacting significant financial penalties from
former lawyers who compete, I believe, “restricts the right of a
lawyer to practice” in violation of ER 5.6(a). My position,
unlike that of the majority, is consistent with the language and
purpose of our ethical rule. It also comports with the views of
most other courts that have addressed this issue, as well as the
Restatement (Third) of the Law Governing Lawyers (2000)
(“Restatement”). Thus, I respectfully dissent from the
majority’s holdings concerning the scope of ER 5.6(a) and the
need to remand this case to determine the reasonableness of the
“voluntary withdrawal” provisions.
23
I.
¶35 By its terms, ER 5.6(a) prohibits more than just non-
compete agreements among attorneys. The rule more generally
bars lawyers from entering agreements that “restrict” their
right to practice after departing a firm. We have long
recognized that non-compete agreements are one form of the
broader category of restrictive covenants. See, e.g.,
Olliver/Pilcher Ins., Inc. v. Daniels, 148 Ariz. 530, 531-32,
715 P.2d 1218, 1219-20 (1986) (distinguishing non-compete
agreement from restrictive covenant requiring insurance employee
to pay former employer share of fees earned if customers
followed employee). While stating that the language of ER 5.6
should not be “stretched” beyond non-compete agreements, op. ¶
21, the majority in fact compresses the rule to less than what
its terms expressly provide.
¶36 Most courts and commentators recognize that law firm
agreements that impose significant penalties on competing former
lawyers do in fact “restrict” a lawyer’s right to practice
within the meaning of rules like ER 5.6(a). See, e.g.,
Pettingell v. Morrison, Mahoney & Miller, 687 N.E.2d 1237, 1239
(Mass. 1997) (noting the “strong majority rule” that courts will
not give effect to agreements that impose substantial financial
penalties on lawyers for competing with former firms); Cohen v.
Lord, Day & Lord, 550 N.E.2d 410, 411-12 (N.Y. 1989) (noting
24
that reading rule to apply only to provisions that expressly
prohibit practice of law conflicts with language and purpose of
rule); 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of
Lawyering 47-6 (3d ed. 2005) (“The Law of Lawyering”) (noting it
has become “generally accepted that financial disincentives
‘restrict’ the departing lawyer’s right to practice [and] thus
implicat[e] Rule 5.6(a)”).
¶37 Similarly, the Restatement, like our ER 5.6(a), bars
lawyers from entering agreements “that restrict [] the right of
the lawyer to practice law after terminating the relationship.”
Restatement § 13(1). Reflecting the generally accepted view,
the official comments to the Restatement note that:
[S]uch rules preclude enforcement of a provision of a
firm agreement under which a departing lawyer is
denied otherwise-accrued financial benefits on
entering into competitive law practice, unless the
denial applies to all departing lawyers, whether
entering into private practice or not . . . .
Id. cmt. b.
¶38 The Restatement approach desirably promotes the
policies that underlie ER 5.6. These policies are two-fold:
preserving both the freedom of clients to choose their lawyers
and the professional autonomy of lawyers to choose where to
practice and whom to represent. See ER 5.6(a), cmt. 1; Valley
Med. Specialists v. Farber, 194 Ariz. 363, 369 ¶ 18, 982 P.2d
1277, 1283 (1999). Discussing American Bar Association (“ABA”)
25
Model Rule of Professional Conduct 5.6(a), from which our rule
is drawn, Professors Hazard and Hodes observe:
Rule 5.6(a) is designed in part to protect lawyers,
particularly young lawyers, from bargaining away their
right to open their own offices after they end an
association with a firm or other legal employer. It
also protects future clients against having a
restricted pool of attorneys from which to choose.
The Law of Lawyering at 47-5.
¶39 Some law firms have tried to restrict competition
under the guise of retirement provisions, because ER 5.6(a)’s
prohibitions do not apply to agreements concerning retirement
benefits. See id. Such efforts typically provide for the
forfeiture of capital shares or fee income that would otherwise
be due a departing lawyer. “Often, the anticompetitive nature
of such clauses . . . is made all the more clear by the fact
that they become inoperative if the lawyer relocates to a
different geographic area.” Id. These observations apply to
the voluntary withdrawal provisions at issue here, as they
result in the forfeiture of the stock purchase price only for
those former lawyers who compete with the firm.
¶40 “Onerous financial terms of this kind effectively
limit the mobility and availability of still active lawyers, and
correspondingly reduce client choice.” Id.; accord Cohen, 550
N.E.2d at 411 (“The forfeiture-for-competition provision would
functionally and realistically discourage and foreclose a
26
withdrawing partner from serving clients who might wish to
continue to be represented by the withdrawing lawyer and would
thus interfere with the client's choice of counsel.”).
¶41 In declining to follow the generally accepted approach
as reflected in the Restatement, the majority observes that it
writes “on a clean slate.” Op. ¶ 14. This is true, however,
only in the narrow sense that we have not previously decided a
case that actually applied ER 5.6(a) to lawyers. We have,
however, recognized that ER 5.6(a) prohibits restrictive
covenants among attorneys. See Valley Med. Specialists, 194
Ariz. at 368 ¶ 17, 982 P.2d at 1282 (citing, inter alia, Cohen,
550 N.E.2d at 410-11). Moreover, in other contexts, we have
often noted that, in the absence of contrary Arizona law, our
courts generally follow the Restatement. See, e.g., Espinoza v.
Schulenburg, 212 Ariz. 215, 217 ¶ 9, 129 P.3d 937, 939 (2006).
The majority unconvincingly departs from our usual approach by
observing, op. ¶ 21 n.8, that the Reporter’s Notes to
Restatement § 13(1) acknowledge that some courts and
commentators do not adopt the Restatement’s interpretation —
something that could be said of nearly every provision in any
Restatement.
¶42 The slate is also not clean in that this court only
recently approved extensive revisions to our rules of
professional conduct, including amendments to ER 5.6(a). See
27
Order Amending Ariz. R. Sup. Ct. 42 and 43, E.R. 5.6 (2003).
These rule changes were the end result of a process that began
with the ABA’s Ethics 2000 Commission, which thoroughly reviewed
and updated the Model Rules of Professional Conduct. The
Arizona State Bar’s Board of Governors in turn established an
Ethical Rules Review Group to review the new ABA Model Rules and
to recommend appropriate changes to our rules. The only changes
proposed for ER 5.6(a) were to broaden its scope to clarify that
it applies to all forms of agreements — whether partnership,
shareholder, operating, employment, or otherwise — restricting a
lawyer’s right to practice after leaving a firm.14
¶43 No one suggested that ER 5.6(a) should be revised to
limit the rule’s prohibitions to only those agreements expressly
barring a lawyer from competing in certain areas or for certain
clients. Instead, in requesting changes to ER 5.6(a), the State
Bar specifically noted that, “[a]s amended, the Rule and
Comments are consistent with the corresponding ABA Model Rule
and Comments.” Petition R-02-0045 for Amendment of Arizona
14
The changes to ER 5.6(a), which became effective on December
1, 2003, are indicated with underlined additions and struck-
through deletions in the following text:
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating,or
employment, or other similar type of agreement that
restricts the rightsright of a lawyer to practice
after termination of the relationship, except an
agreement concerning benefits upon retirement.
28
Supreme Court Rules 42 and 43 at 21 (2002). One would think
that, if Arizona had adopted or proposed to adopt a version of
ER 5.6(a) that is narrower than the generally accepted
interpretation of Model Rule 5.6 and Restatement § 13, there
would be some attention to this fact.
¶44 The majority instead defends its constricted reading
of Arizona’s ER 5.6(a) by relying on the California Supreme
Court’s decision in Howard v. Babcock, 863 P.2d 150, 151 (Cal.
1993), which interpreted Rule 1-500 of the California State
Bar’s Rules of Professional Conduct. Op. ¶¶ 18-20. For several
reasons, I find Howard’s reasoning unpersuasive. Cf.
Pettingell, 687 N.E.2d at 1239 (noting that “[c]ourts have not
been attracted to the [minority] view expressed in Howard”).
California’s Rule 1-500 is on its face narrower than ER 5.6(a)
because it expressly allows restrictions on a lawyer’s right to
practice that satisfy California’s Business and Professions
Code, which itself allows certain restrictive covenants.
Consistent with the California statutes, the premise of the
Howard decision is that law firm partners should be treated, in
terms of restrictive covenants, no “differently . . . [than]
partners in other businesses and professions.” 863 P.2d at 157.
¶45 Howard’s equation of law firm partners with other
professionals does not work in Arizona. Our ER 5.6(a) is not
limited to restrictions affecting law firm partners, but instead
29
applies broadly to agreements restricting the right of any
lawyer to practice. See ER 5.6(a) & cmt. 1. Reading ER 5.6
narrowly, as does the majority, will impact all lawyers, and not
merely law firm partners. Arizona, unlike California, also has
no rule providing that lawyers may enter restrictive covenants
otherwise authorized by our general professional statutes.
Finally, we have already recognized that ER 5.6(a) is broader
than the prohibitions on restrictive covenants for other
professionals, such as doctors. See Valley Med. Specialists,
194 Ariz. at 368-69 ¶¶ 16-17, 982 P.2d at 1282-83 (noting that
although the American Medical Association only discourages
restrictive covenants between physicians, such covenants are
actually prohibited among attorneys). Thus, the fact that
professionals other than lawyers may also owe duties to their
clients cannot determine the scope of ER 5.6(a), a rule that
reflects this court’s authority to regulate the practice of law
and interests in client choice and lawyer autonomy that are in
some respects unique to the legal profession.
¶46 At bottom, the majority’s decision to limit ER 5.6(a)
to only those agreements that expressly bar a lawyer from
competing with a former firm rests on a policy concern — the view
that law firms should be able to protect their own economic
interests by imposing financial penalties on former lawyers who
compete. See Op. ¶ 19; cf. The Law of Lawyering at 47-6
30
(recognizing that Howard rests on policy concerns that give
primacy to law firm continuity). This policy, however, is not
recognized by either the text of ER 5.6(a) or its previously
identified purposes. See Pettingell, 687 N.E.2d at 1239 & n.4
(noting that Model Rule 5.6 focuses on lawyer autonomy and,
chiefly, client choice, “not the interrelationship of the
partners and former partners”). If a law firm’s “obligation to
protect [its] own economic interests,” op. ¶ 19, merits
recognition in ER 5.6(a), we should consider proposals to amend
the rule, which would allow an opportunity for broad public
comment and full consideration of the interests involved, rather
than engrafting California’s minority approach onto our rule by
judicial decision.
¶47 The majority’s approach will unfortunately subvert the
interests that are protected by ER 5.6(a). Law firms and other
legal employers will be encouraged to avoid the prohibitions in
ER 5.6(a) by seeking to impose — as this case illustrates —
financial penalties rather than explicit restrictions on
competing former attorneys. Because the legality of such
penalties will be judged only post hoc under a vague
reasonableness standard, lawyers will be discouraged from
leaving their firms to compete or from challenging post-
departure restrictions. Cf. Valley Med. Specialists, 194 Ariz.
at 372 ¶ 31, 982 P.2d at 1286 (recognizing that restrictive
31
covenants that are not challenged in court may have in terrorem
effect on departing employees). This result may help law firms
tighten the golden handcuffs on their lawyers; it will not
promote autonomy on the part of individual attorneys or the
freedom of clients to be represented by the lawyer of their
choice.
¶48 I would instead apply ER 5.6(a) by its terms and hold
that the voluntary withdrawal provisions at issue here — which
require a former lawyer to forfeit the purchase price of his
stock if he competes after departing — are a restriction on a
lawyer’s right to practice and are therefore unenforceable. The
majority’s holding that such provisions escape the prohibitions
of ER 5.6(a) will undermine the interests protected by that rule
and unnecessarily require courts to engage in fact-specific
adjudication over penalty provisions that should be held void on
their face.
II.
¶49 Even if I accepted the majority’s conclusion that the
penalty provisions in this case should be evaluated for their
“reasonableness,” a remand would not be necessary. Although a
fact-specific inquiry, the reasonableness of restrictive
covenants remains a question of law in Arizona. Valley Med.
Specialists, 194 Ariz. at 366-67 ¶ 11, 982 P.2d at 1280-81.
Further, “a covenant not to compete is invalid unless it
32
protects some legitimate interest beyond the employer’s desire
to protect itself from competition.” Id. at 367 ¶ 12, 982 P.2d
at 1281 (citations omitted).
¶50 The law firm did have an opportunity below to present
facts concerning the reasonableness of the “voluntary
withdrawal” provisions. In briefing on the cross-motions for
summary judgment, RSCE specifically argued that the provisions
are reasonable under the Howard approach. In support of this
argument, RSCE contended that the provisions do not result in
any forfeiture on the part of Fearnow (an implausible assertion
which the majority itself rejects) and that the provisions are
reasonable because the firm lost clients who chose to follow
Fearnow after he departed. The second reason offered by RSCE to
support the provisions fails as a matter of law — given ER
5.6(a), the firm has no legitimate interest merely in avoiding
competition for its clients by its former lawyers.
¶51 To the extent that other rationales might be offered
for requiring departing lawyers to forfeit the price of their
capital stock upon withdrawal, e.g., a firm’s desire to recoup
some transition costs or to reserve sufficient funds to cover
firm debts, the provision here is patently under-inclusive, and
thus unreasonable, because it singles out only those former
lawyers who compete. Cf. Pettingell, 687 N.E.2d at 1240
(acknowledging that a firm might reasonably apply a charge to
33
all attorneys to prevent the firm from being left with “onerous”
debts); Denburg v. Parker Chapin Flattau & Klimpl, 624 N.E.2d
995, 999 (N.Y. 1993) (rejecting argument that capital forfeiture
provision was justified by desire to recoup firm’s relocation
costs where penalty applied only to those departing lawyers who
were potential competitors).
¶52 RSCE already had an opportunity to present facts in
support of the reasonableness of its provisions or to identify
disputed material facts that preclude summary judgment. Cf.
Valley Med. Specialists, 194 Ariz. at 372 ¶ 33, 982 P.2d at 1286
(noting party seeking to enforce restrictive covenant has burden
of showing it “is no greater than necessary to protect the
employer’s legitimate interest, and that such interest is not
outweighed by” harm to employee or public). It failed to do so,
and there is no good reason to prolong this litigation by
remanding for further proceedings on this issue.
III.
¶53 I concur in the majority’s opinion insofar as it holds
that, if the “voluntary withdrawal” provisions are
unenforceable, the appropriate remedy is for Fearnow to recover
the amount he originally was deemed to have paid for his stock.
_____________________________
W. Scott Bales, Justice
34