Lawyer lateral moves between firms: notice, non-compete and clients under the rules

Lateral moves of lawyers between firms are part of everyday life in the legal market. An associate joining another firm or a team switching houses can make the news for the names involved. But behind every move there is a regulatory framework worth knowing before signing, whether you are the one leaving or the firm that is hiring.

This article does not analyse any specific transaction. It explains the rules that apply in general in Spain.

First: partner or employed lawyer?

The initial question is what relationship ties the lawyer to the firm being left.

If the lawyer works as an employee within the organisation of the firm's owner, Royal Decree 1331/2006 applies, which regulates the special employment relationship of lawyers who provide services in law firms. Its Article 1.2 excludes partners of professional companies, those who practise on their own account and collaborations between independent firms. In those cases the partnership agreement, the pacts between partners and, where relevant, the rules on professional companies govern.

We explain that regime in detail in our guide to the special employment relationship of lawyers. Here we focus on what matters when changing firms.

Notice: between 45 days and three months

Under Article 22 of Royal Decree 1331/2006, a lawyer who resigns must give notice within the period set by the collective agreement or the contract, which must be between 45 days and three months. The lawyer must also inform the firm of the status of pending matters and hand over the documentation in their possession.

If the notice or the duty to inform is not respected and the firm suffers harm, it can claim damages. That is why the timetable of a move should be built around that period.

The non-compete clause: legal limits

Article 12 allows a non-compete covenant after the end of the contract, under strict conditions:

• It can only restrict activity regarding the firm's clients or matters in which the lawyer was involved.
• Clients that the lawyer brought at the start of the relationship are excluded, unless expressly agreed otherwise.
• It cannot become a general limitation on the practice of the profession.
• Its maximum duration is two years from the end of the contract.
• It is only valid if an adequate financial compensation is agreed.

If the contract does not include that clause, there is no contractual non-compete restriction, although the ethics rules still apply.

Retention and training

Article 11 admits a retention agreement when the firm has paid for training. Retention cannot exceed two years and must be in writing. If the lawyer leaves earlier, the firm can claim damages, but never more than the training cost.

Clients: freedom of choice and loyalty

The client decides. Organic Law 5/2024 on the Right of Defence recognises in its Article 5 the right to choose a lawyer freely, to dispense with their services and to replace them, with access to the necessary information.

That does not mean anything goes in attracting the previous firm's clients. The 2019 Code of Ethics of the Spanish Legal Profession establishes:

• Article 7.2: prohibits unfair solicitation of clients.
• Article 11.1: requires reciprocal loyalty, mutual respect and collegiality among professionals.
• Article 8: when a client changes lawyer, the new lawyer must notify the previous one before acting, the traditional "venia", which can never be refused. The replaced lawyer must provide the information and documentation of the matter.
• Article 14.2.c: admits, as an exception to the prohibition on sharing fees, compensation to someone who has left a collective firm.

For lawyers with an employment relationship, Article 13 of Royal Decree 1331/2006 adds that clients brought at the start of the relationship must be recognised and compensated according to the collective agreement or the contract.

Professional secrecy travels with the lawyer

Article 5.8 of the Code of Ethics is clear: the duty of secrecy continues even if the lawyer leaves the firm in which they were working, and it has no time limit. The information of the previous firm's clients cannot be used in the new one.

Related to this, Article 12 of the Code regulates conflicts of interest. Assignments against a former client cannot be accepted if there is a risk of breaching secrecy, and never in the same proceedings in which that client was defended. In a lateral move, reviewing conflicts before joining is as important as negotiating the financial terms.

Checklist before signing

1. Identify whether your relationship is a special employment one or a partnership one.
2. Locate in your contract the notice period and any non-compete or retention clause.
3. Check that the non-compete has compensation and does not exceed two years.
4. Prepare the list of pending matters and the handover of documentation.
5. Do not contact the firm's clients in a way that could be considered unfair solicitation.
6. Review possible conflicts of interest with the new firm.

Breaching the ethics rules can have disciplinary consequences under the General Statute of the Spanish Legal Profession. In a specific case, the prudent course is to consult the bar association or a specialist in employment and professional law.

We follow the law firm market in the Big law firms and lateral moves section. If your firm wants to announce a move, you can send us the news through the Submit news form. And if you want to know the rights and duties set by the new law, read our analysis of the Organic Law on the Right of Defence.