## Facts

- Dike, Bronstein, Roberts & Cushman LLP (DBRC) operated under a partnership agreement with partner-compensation provisions tied to certain “credited” clients.
- The agreement included provisions requiring a departing partner who continued to represent certain current or former DBRC clients to remit to DBRC a portion of fees earned after departure.
- In 1999, Ronald Eisenstein and David Resnick resigned from DBRC and joined another firm (later Nixon Peabody LLP).
- Some DBRC clients chose to continue with Eisenstein and Resnick at their new firm.
- Disputes arose over the enforceability of the agreement’s post-departure fee-remittance provisions and related financial consequences on withdrawal.
- Eisenstein and Resnick sued seeking amounts they claimed were owed under the partnership agreement (including profits and capital); DBRC counterclaimed for breach of contract and breach of fiduciary duty.
- On cross-motions for summary judgment, the Superior Court ruled for Eisenstein and Resnick, holding the contested provisions unenforceable on public policy grounds; DBRC appealed.

## Issues

1. Whether partnership-agreement provisions requiring departing law partners to pay the former firm a portion of fees earned from current or former firm clients after departure are enforceable under Mass. R. Prof. C. 5.6(a) and Massachusetts public policy favoring client choice of counsel.

## Decision

- The Supreme Judicial Court affirmed summary judgment for Eisenstein and Resnick (and their new firm).
- The court held the contested provisions were unenforceable because they impinged on the strong public interest in allowing clients to retain counsel of their choice.
- The court concluded the provisions operated as an impermissible restriction on a lawyer’s right to practice after leaving a firm, in violation of Mass. R. Prof. C. 5.6(a).
- The court further reasoned that enforcing the provisions would confer an unwarranted financial benefit on DBRC from work performed after the lawyers’ departure for clients who elected to follow them.

## Legal Principles

- Mass. R. Prof. C. 5.6(a) prohibits a lawyer from participating in an agreement that restricts the lawyer’s right to practice after termination of a firm relationship, except agreements concerning retirement benefits.
- A contract term may violate Rule 5.6(a) even if it does not expressly bar representation; a substantial economic disincentive tied to representing former firm clients can function as a restriction on post-termination practice.
- Massachusetts public policy strongly protects client freedom to choose counsel, including the ability to continue with lawyers who change firms.
- A firm’s interest in protecting revenues or client relationships does not justify post-departure fee-sharing requirements that deter continued representation of clients who prefer the departing lawyers.

## Conclusion

The court held that partnership provisions requiring departing partners to remit a portion of post-departure fees earned from clients who choose to follow them are void and unenforceable because they functionally restrict post-termination practice and interfere with client choice, contrary to Rule 5.6(a) and public policy.


Eisenstein v. Conlin, 827 N.E.2d 686 (Mass. 2005)