You have presented a hypothetical situation in which Corporation A
(the "Company") wishes to hire a member of the Virginia State Bar
(the "Individual") to serve as General Counsel for a department of
the Company, whose principal executive offices are located in
Virginia.  You indicate that, while serving as General Counsel, the
Individual will become familiar with the Company's trade secrets
and other highly confidential proprietary information, which
information, if revealed to a competitor of the Company, would
cause substantial and irreparable harm to the Company.  The
Individual has legal expertise in an area which would be useful to
the Company's competitors and thus, it is reasonably likely that
the Individual would be an attractive candidate for an in-house
legal position with the Company's competitors, particularly after
serving as General Counsel for the Company. 

You further indicate that the Company and the Individual wish to
enter into an agreement whereby the Individual agrees not to work
for a competitor of the Company, as the competitor's in-house
counsel, for a period of one year following the termination of his
employment by the Company.  The agreement states expressly that the
Individual may serve as outside counsel for a competitor, after
leaving the employ of the Company, so long as the Individual does
not disclose the Company's confidential proprietary information. 
This agreement will not be part of an employment agreement, but
rather will be a separate non-competition and confidentiality
agreement with a lawyer who will serve as an at-will employee.  
You have asked the committee to opine whether, under the facts of
the inquiry, a lawyer may be a party to a confidentiality and non-
competition agreement (not part of an employment agreement) with a
corporate employer/client, wherein the lawyer agrees not to serve
as in-house counsel for a competitor of the corporate
employer/client for one year following termination of the lawyer's
employment with the corporate employer/client.

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 2-106(A), which states that a lawyer shall not be a
party to a partnership or employment agreement that restricts the
right of a lawyer to practice law after the termination of a
relationship created by the agreement, except as a condition to
payment of retirement benefits.
The committee is of the opinion that the non-competition portion of
the agreement is improper under the Disciplinary Rule.  The fact
that the non-competition agreement is in a separate document which
is not physically part of either an employment or partnership
agreement is not significant in the committee's opinion.  The
committee is of the view that the restriction of the lawyer's
practice which prevents him from serving as in-house counsel for a
competitor for a period of one year violates DR 2-l06(A), even
though service as outside counsel for a competitor is permitted. 
See LEO #1403.
The committee recognizes the corporate employer's concerns as to
the preservation of its confidential and proprietary information. 
However, under the Code of Professional Responsibility, protection
of client confidences and secrets is assured.  Therefore, the
committee believes that the portion of the agreement which requires
the attorney not to disclose confidential and proprietary
information is superfluous.  See ABA Comm. on Ethics and
Professional Responsibility, Informal Op. 1301 (1975).

[DR 2-106(A); LEO 1403; ABA Informal Op. 1301 (1975)]

Committee Opinion
February 7, 1995