A recent Law 360 story by Thy Vo, “Colo. Justices Say Firm’s Departing Atty Fee Is Unenforceable, reports that the Colorado Supreme Court has found a family law firm's contract requiring a departing attorney to pay a fee for every client he took with him is unenforceable, ruling in a unanimous decision that such a provision would improperly limit the attorney's practice and incentivize attorneys to drop clients with less lucrative claims.

In the published decision, the justices said Modern Family Law's reimbursement contract requiring that lawyers pay a fixed fee for clients that follow them, without any consideration for actual costs, violates the state's rules of professional conduct for attorneys.  While there are circumstances where reimbursement would make sense — like if a firm spent additional money to court a big client — justices called the firm's "undifferentiated" fee a "direct intrusion on the attorney-client relationship."

"Of particular concern, such a fee forces attorneys to make individualized determinations of whether a client is 'worth' retaining and incentivizes them to retain clients in high-fee cases and to jettison clients with less lucrative claims," Justice Melissa Hart wrote on behalf of the court.

Troy R. Rackham of Spencer Fane LLP, counsel for former Modern Family Law associate Grant Bursek, told Law360 that they are "grateful" for the court's opinion.  The $18,000 that the firm demanded from Bursek when he left was roughly a quarter of his total net compensation at the time, Rackham said.  "He decided to challenge the unfairness of the provision … and wanted to create a precedent that firms shouldn't be able to do this," Rackham said.

The Colorado law firm's reimbursement agreement required departing attorneys to reimburse the firm for "marketing expenses related to any client, case or active matter" that they took with them.  The contract lays out a fixed fee of $1,052 per client, plus 1.5% in monthly interest, based on "historic" expenses for clients of the Denver office, according to the ruling.  When Bursek left the firm in September 2019 and 18 clients decided to go with him, Modern Family Law demanded he pay $18,936 under the agreement.  Bursek refused, prompting the family law firm to sue him for breaching their contract.

Modern Family Law contended that Bursek, a competent lawyer who previously ran his own firm, exercised his autonomy in signing the reimbursement agreement, allowing him to benefit from the firm's marketing.  He wasn't required to sign the agreement unless he opted to use the firm's marketing services and the reimbursement doesn't apply to clients that Bursek brought to the firm or who were generated by referrals, according to the firm's petition for writ of certiorari.

A trial court concluded that the per-client reimbursement provision unreasonably restricted Bursek's right to continue representing his clients and said the entire agreement was unenforceable.  On appeal, a Colorado Court of Appeals panel agreed that the fee was unreasonable and unenforceable, and held that a fee that "disincentives an attorney from leaving a firm" can pass muster if it's not "unreasonably restrictive."  Courts should consider several factors when assessing reasonableness, such as attorney autonomy, client choice, and the financial burden on a law firm when an attorney departs, the panel said.

The appellate panel also reversed the trial court's tossing of the entire agreement, finding parts of the contract unrelated to the per-client fee were enforceable.  That included a provision requiring Bursek to pay the firm's attorney fees and costs for disputes related to the agreement.

In the ruling, Justice Hart said Modern Family Law's fixed fee is "fundamentally at odds" with a rule aimed at protecting a lawyer's professional autonomy and ensuring clients have the freedom to choose an attorney.  While reasonableness is an appropriate standard for assessing whether a financial disincentive impermissibly restricts a lawyer's right to practice, the justices said they didn't need to address that question here because Modern Family Law's fee doesn't take into account actual costs associated with specific clients.