Opinion 90-10B
(October 1990)

By your letter of July 17, 1990, you have asked the Professional Guidance Committee to supplement its previous opinion by addressing the professional responsibility implications of the four numbered questions posed in your original letter of inquiry. The Committee respectfully declines.

The four questions you raised dealt with the propriety of four alternative liquidated damages "scenarios." The Committee had hoped to make clear that the problems identified in its Opinion were inherent in the structure of your firm's Executive Agreement and did not lie with any particular liquidated damages percentage or formula. As the Committee stated:

The Committee does not view such speculation as to curative language within its mandate and, accordingly, respectfully declines to address these questions. The Committee does note, however, that just as the concept of liquidated damages does not per se violate Rule 5.6(a), neither do less onerous liquidated damages percentages cure other aspects of a partnership or employment agreement which restricts an attorney's right to practice law subsequent to the termination of his or her relationship with the firm.

In view of the fact that the Committee has already declined to address these very same questions and in view of the fact that you have not provided the Committee with any additional information with which to evaluate those questions, the Committee rests on its previous opinion.

Finally, your letter of July 17, 1990 makes reference to the fact that "this matter is now in controversy...." The Committee's mandate is to advise members of the Bar "on the propriety of any action proposed to be taken by them in a professional matter or transaction, or in the course to be pursued in any controversy with another member of the Bar or with a client." (emphasis supplied.) For that reason, the Professional Guidance Committee has traditionally been reluctant to become involved in existing controversies between lawyers with respect to professional responsibility issues. This, coupled with the fact that the parameters of this particular controversy are unknown to us, only reinforces the Committee's feeling that a further comment or evaluation of its original opinion is unnecessary.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.