Harrison v. Barclay, 2024 COA 100

Ivy Ngo, head of the class action department at Franklin D. Azar & Associates P.C., signed both a Confidentiality Agreement and an Employment Agreement containing restrictive covenants, including an employee nonsolicitation clause.
Ngo, while still employed at Azar, planned her departure and sought to persuade the entire class action department to leave with her to a new firm, sending a "slide deck" to other firms as part of her efforts.
Upon discovery of her actions, Azar terminated Ngo, who then began work at a new law firm four months later.
Azar sued Ngo for breach of contract and breach of fiduciary duty; Ngo counterclaimed for defamation and sought declaratory judgment that certain agreement provisions violated Colorado Rule of Professional Conduct 5.6(a).
The trial court found the client nonsolicitation provision unenforceable under Rule 5.6(a) but upheld the employee nonsolicitation provision for predeparture conduct. The jury found Ngo had breached both agreements and awarded nominal damages.
Azar was awarded significant attorney fees and costs, and Ngo appealed on substantive and procedural grounds.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does an employee nonsolicitation provision for predeparture conduct violate Rule 5.6(a)?	Does not violate Rule 5.6(a); enforces duty of loyalty before departure.	Violates Rule 5.6(a); unlawfully restricts right to practice and assemble team post-termination.	Provision is enforceable for predeparture conduct; does not restrict right to practice after termination.
Should the jury have received an instruction on the employee preparation privilege?	No need for privilege instruction since the claim is breach of contract.	Employee is entitled to prepare to compete under Jet Courier; jury should be instructed.	Privilege applies to torts, not contracts; no instruction needed.
Did the litigation privilege apply to Azar’s letters to potential employers?	Letters related to the litigation and thus were privileged.	Letters to uninvolved law firms fell outside the scope of privilege.	Letters were privileged as related to the underlying litigation.
Are the attorney fees and costs provisions invalid under Rule 5.6(a)?	Not addressed directly, as defense said Ngo failed to preserve the argument.	Fee-shifting provision operates as a financial disincentive, violating Rule 5.6(a).	Argument not preserved below; court refused to address.

Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486 (Colo. 1989) (establishes duty of loyalty, precluding employee solicitation of co-workers before departure)
Killmer, Lane & Newman, LLP v. BKP, Inc., 2023 CO 47 (CO 2023) (clarifies the scope of the absolute litigation privilege)
Johnson Fam. L., P.C. v. Bursek, 2024 CO 1 (CO 2024) (interprets Rule 5.6’s prohibition on post-termination restrictions on lawyers)