A judge has ruled as unenforceable parts of a Cellino & Barnes employment agreement that prohibited a departing lawyer from telling his clients he was leaving the law firm.

State Supreme Court Justice John A. Michalek also curtailed the law firm’s ability to collect as much as 89 percent of the legal fees from clients the lawyer took with him.

The firm said it was entitled to nearly 44 percent of the legal fees just for its marketing and advertising expenses.

But parts of the agreement that lawyer Paul B. Becker signed in 2005 violate the legal profession’s rules of professional conduct, Michalek said in his decision.

“To the extent that . . . the agreement bars Becker from communicating with the clients he represented while employed by the firm, it is unenforceable as an illegal noncompetition agreement between lawyers,” Michalek said.

Becker, who left the firm two years ago, went to court last year to contest the agreement.

He declined to comment. But in his lawsuit, Becker spelled out his complaints in asking the judge to declare the employment agreement unenforceable.

Under the agreement, only the law firm could notify his clients that he left the firm, which it did 24 days after he gave his 15-days notice.

“These provisions are designed for one purpose only, which is to keep the client from making a timely and informed choice of counsel,” Becker said in the lawsuit. “Cellino & Barnes is hiding from the client the fact that the attorney is leaving until the attorney has left.”

“The provisions are designed to keep the client from making an informed decision by making it appear as if the departing attorney abandoned his clients,” according to Becker’s suit.

“The clients are not informed that the attorney is not allowed to contact them,” he added. “The provisions are obviously designed to create the implication that the attorney has no interest in representing the clients or to place the departing attorney in a bad light.”

Cellino & Barnes asked Michalek to award it the legal fees it sought and to find Becker violated the employment agreement.

The firm’s position in the court matter is that the non-communication provisions did not impact the clients’ choice of lawyers, because the firm informed them of Becker’s departure. Nine clients of the firm retained Becker after he left.

The firm declined to comment.

“Pursuant to ethical considerations, I am not at liberty to discuss a pending legal matter,” said Gregory V. Pajak, one of the law firm’s attorneys assigned to the case.

The law firm’s advertising is ubiquitous in Western New York. The firm spent an estimated $3.4 million on television and billboards alone in 2004, according to media tracking sources.

The agreement underscores the importance of the marketing and advertising, which the firm called part of its “case acquisition costs.”

One clause in the agreement reads: “But for employer’s expending substantial monies on case acquisition costs, neither the employer nor the employee would have been introduced to the clients, and that there would be no cases available for employer to assign to employee to work on and earn the wages and compensation.”

Michalek noted that the percentage reserved to cover case acquisition costs had not changed since 2005 and that the firm had not established the actual amount of such costs.

“Therefore, the imposition of the 43.56 percent lien is more appropriately deemed a penalty, because there is no proof it bears any relationship to actual damages or expenses,” Michalek said. “Further, the agreement specifically defines case acquisition costs as not including any legal work performed on the client matter.”

“To the extent that a departing lawyer such as Becker must continue to pay the firm’s overhead in the amount of 43.56 percent of the fees that he earns if he represents a former firm client, that penalty serves as a strong disincentive for him to represent any client who wishes to follow him,” Michalek said in his decision.

plakamp@buffnews.comnull