Applying the Exception

An exam question about a lawyer's promise to stop practicing asks one thing underneath: does the promise belong to a genuine sale of a practice, or is it an ordinary restraint on the right to practice that Rule 5.6 forbids? The sale exception protects the first and not the second, and it protects the promise only while the sale around it holds together. Rule 1.17 lets a lawyer or firm sell or purchase a practice, or an area of practice, including good will, only "if the following conditions are satisfied."¹ One condition mirrors the covenant itself: the seller must cease the private practice of law, or the area of practice sold, in the geographic area or jurisdiction where the practice has been conducted.² A transaction that misses any condition is not a Rule 1.17 sale, and a covenant inside it has no exception to rest on.

Test the transaction before the clause. Each gate presupposes the one before it, so run them in this order:

Exam Analysis Steps

Ask whether a practice, or an area of practice, is actually being sold to a lawyer or firm together with its good will. A promise tied only to an employment agreement or to a lawyer's departure from a firm fails here.
Ask whether the seller has ceased the private practice of law, or the area of practice sold, in the geographic area or jurisdiction where the practice was conducted.³ The rule bends only narrowly, for unanticipated changes, limited transition help, and death or disability.
Confirm that the seller offers the entire practice, or the entire area, for sale. The rule does not permit the sale of individual client matters or segments of an area, and the parties may not skim off the more lucrative elements.⁴ A matter the seller keeps by choice defeats the condition; a matter the buyer cannot accept because of a conflict of interest does not.
Confirm that every client receives written notice, and that a client who cannot be given notice moves to the purchaser only on a court order authorizing the transfer.⁵ Confirm, too, that no client's fees increase by reason of the sale.
Trace the money. The agreed purchase price, including a price paid to the estate or representative of a deceased, disabled, or disappeared lawyer, is permitted under Rule 1.17 as an exception to the Rule 5.4(a) bar on sharing legal fees with a nonlawyer.⁶
Compare the promise with what the sale already requires, and flag any restriction that reaches past the area sold or past the place where the practice was conducted.

The first five steps ask whether the transaction qualifies, and the sixth asks whether the promise stays inside what the transaction justifies. Step one comes first because everything after it presupposes a sale. A fact pattern with no purchase price, no transfer of good will, and no buyer ends at step one with a Rule 5.6 problem, however cleanly the lawyer appears to be leaving.

That sale can fail at any single gate, and the gate that fails names the defect. Because the permission depends on the conditions being satisfied, a nearly compliant sale is still not a Rule 1.17 sale.⁷

A seller who keeps accepting immigration clients in the same city after closing has not ceased practice in the area sold and in the place where it was conducted, so the cessation gate fails.⁸
A seller who transfers a handful of the most lucrative immigration matters and keeps the rest of the docket has not sold the entire area, because the rule forbids skimming off the profitable matters.⁹
A seller who transfers a client who could not be given notice, without a court order authorizing the transfer, has ignored the rule's only route for that client.¹⁰
A buyer who raises the inherited clients' rates to recoup the price breaks the no-fee-increase gate, even if every earlier gate was passed.

In each variation the promise is the same, and its protection disappears for reasons that have nothing to do with its wording. That is why the checklist tests the transaction before the clause.

The sixth step handles the seller whose sale is genuine but whose promise runs too far. A covenant that matches the cessation duty confirms what Rule 1.17 already requires, so it takes nothing from the seller or from clients that the rule has not accounted for.¹¹ The rule's text speaks only of cessation in the area sold and in the place where the practice was conducted, so the protection reasonably reaches no farther. The text does not itself declare a broader covenant void, which makes the conclusion below an inference from the exception's scope.

The first half of that covenant tracks the cessation condition, which already requires him to leave the area sold in the place where the practice was conducted.¹² The second half asks for more than the buyer purchased. The buyer paid for good will in workers' compensation matters in that city, and a ten-year bar on every other field and place protects none of it. The clients of other fields were never part of the sale, so the notice safeguards that justify the exception never reached them. The extra restriction removes a lawyer from the pool clients may choose from without any offsetting protection, which is the harm Rule 5.6 exists to prevent. The sound exam conclusion is that the portion tracking the cessation duty is protected and the surplus is at serious risk under Rule 5.6.

What becomes of the identical promise when no practice changes hands? That question separates a sale from an ordinary restriction on a departing lawyer.

The words match the seller's promise, and the transaction behind them differs completely. In a sale, the seller's departure is what the buyer paid for, the rule already demands it, and the clients receive notice. In the employment agreement nothing was sold, nothing was paid for, and no client was told anything. The clause is therefore an ordinary restriction on the right to practice, and it raises a Rule 5.6 problem.

An exam answer should state its conclusion in the order the checklist runs. It says first whether a practice or area was sold, then whether the seller left the area sold in the place where it was conducted, then whether the entire-sale, notice, and fee conditions were met, and last whether the promise reaches beyond the sale. A label helps at no step. A contract titled a sale of practice that leaves the seller working in the field fails step two however it is described.¹³

Applying the Exception

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