Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Poff, Senior Justice 

SHUTTLEWORTH, RULOFF 

AND GIORDANO, P.C. 

v. Record No. 962538 OPINION BY JUSTICE CYNTHIA D. KINSER 

 October 31, l997 

R.J. NUTTER, II 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Jane Marum Roush, Judge Designate 

 At issue before this Court is the enforceability of a 

provision in an addendum to an employment contract entered into 

between Shuttleworth, Ruloff and Giordano, P.C. (Shuttleworth), 

a law firm, and R.J. Nutter, II (Nutter), who was both a 

stockholder and an employee of Shuttleworth. Because we find 

that the disputed addendum provision does not violate the 

Virginia Code of Professional Responsibility, we will reverse 

and remand for proceedings consistent with this opinion. 

 I. 

 On May 26, 1987, at the outset of his employment with 

Shuttleworth, Nutter signed an "Employment Agreement." 

Subsequently, on February 12, 1990, Shuttleworth and Nutter 

entered into an "Addendum To Employment Agreement." At that 

time, Shuttleworth was preparing to execute an eleven-year 

lease for new office space. The Addendum's stated purpose was 

to address Nutter's obligation pursuant to his personal 

guarantee of the lease. The Addendum provided that, in 

exchange for Nutter's personal guarantee, Nutter would receive 

a portion of the cash incentive being offered to Shuttleworth 

by the landlord of the leased property. However, should Nutter 
 2 

leave his employment with Shuttleworth during the first five 

years of the lease, Nutter would have to refund a pro rata

portion of his share of the cash incentive.1

 Nutter had an additional obligation under the Addendum. 

Upon the voluntary or involuntary termination of his employment 

with Shuttleworth, he would remain liable on a monthly basis 

for his "proportionate share" of the lease payments.2 The 

commitment to make lease payments was a "continuing 

obligation," commencing on the date of the lease and continuing 

through the end of the eleven-year lease term. 

 However, the obligation to make lease payments after 

termination of employment with Shuttleworth was not absolute. 

Nutter would not have been required to make payments if his 

termination was the result of death or disability, if he was 

appointed to the judiciary, or if he was terminated 

involuntarily by a non-unanimous vote of Shuttleworth's board 

 

 1 Nutter's share was approximately $21,000. Since Nutter 

left Shuttleworth more than five years after the commencement 

of the lease, Nutter did not have to return any of the cash 

incentive. The validity of that particular provision in the 

Addendum is not at issue in this case. 

 2 An employee's "proportionate share" was to be expressed 

in the form of a fraction. The numerator was to be the average 

of the employee's two years' gross receipts for the two fiscal 

years of Shuttleworth next preceding the date of termination. 

The denominator was to be Shuttleworth's average gross receipts 

for the two fiscal years of Shuttleworth next preceding the 

date of termination. This fraction was to then be multiplied 

by Shuttleworth's monthly lease payment. The evidence did not 

show the precise dollar amount of Nutter's "proportionate 

share" of the lease payments. 
 3 

 

of directors.3

 Most important to our determination here is the 

provision that the lease payments would continue after the 

first five years of the lease "only in the event that [Nutter] 

has entered into the active practice of law." 

 In September 1995, more than five years after commencement 

of the lease, Nutter terminated his employment with 

Shuttleworth.4 Following Nutter's termination, Shuttleworth 

filed a petition for declaratory judgment in the court below. 

In its petition, Shuttleworth requested the court to declare 

that the Addendum's lease payment provision requires Nutter to 

make monthly payments. Shuttleworth also sought a judgment for 

the sum of all lease amounts "accruing and unpaid" by Nutter up 

until the time of final adjudication. 

 In response to Shuttleworth's petition, Nutter filed a 

motion for summary judgment pursuant to Rule 3:18. In his 

motion, Nutter contended that the Addendum's lease payment 

provision was void as a matter of law because it violated the 

public policy stated in Disciplinary Rule (DR) 2-106(A) of the 

Virginia Code of Professional Responsibility.5

 Specifically, 

 3 Nutter's obligation under the Addendum's lease payment 

provision also ceased if Shuttleworth's landlord declared the 

office lease in default and called upon the personal 

guaranties. 

 4 Currently, Nutter is engaged in the private practice of 

law in the Tidewater area. 

 5 DR 2-106 (A) provides as follows: 

 A lawyer shall not be a party to a partnership or 

employment agreement that restricts the right of a 
 4 

Nutter argued that the provision was a financial disincentive 

to his continued practice of law. Nutter further contended 

that the challenged provision infringed on the public's right 

to obtain counsel of its choosing. 

 After considering briefs submitted by both parties as well 

as hearing oral argument, the trial court granted Nutter's 

motion for summary judgment. In explaining its rationale, the 

trial court stated: 

 I do think that the provision of the agreement that 

says that partners who have withdrawn from the firm 

or shareholders who have withdrawn from the firm, 

have to pay their proportionate share of the lease 

obligation after the fifth year, only if they're 

engaged in the active practice of law, does run afoul 

of Rule 2-106(A) of the Virginia Code of Professional 

Responsibility and is therefore unenforceable as 

contrary to the public policy of Virginia. 

Shuttleworth appeals. 

 II. 

 We have often stated that "`[t]he parties' contract 

becomes the law of the case unless it is repugnant to some rule 

of law or public policy.'" Rash v. Hilb, Rogal & Hamilton Co., 

25l Va. 28l, 285, 467 S.E.2d 791, 794 (1996) (quoting Winn v. 

Aleda Const. Co., 227 Va. 304, 307, 315 S.E.2d 193, 194 

(1984)). If a contract violates public policy, it is void and 

of no legal effect. Cohen v. Mayflower Corp., 196 Va. 1153, 

1160, 86 S.E.2d 860, 864 (1955); Wallihan v. Hughes, 196 Va. 

 

lawyer to practice law after the termination of a 

relationship created by the agreement, except as a 

condition to payment of retirement benefits. 
 5 

117, 124, 82 S.E.2d 553, 558 (1954). However, "the law looks 

with favor upon the making of contracts between competent 

parties upon valid consideration and for lawful purposes, and 

`courts are averse to holding contracts unenforceable on the 

ground of public policy unless their illegality is clear and 

certain.'" Jessee v. Smith, 222 Va. 15, 17-18, 278 S.E.2d 793, 

795 (1981) (quoting Ryan v. Griffin, 199 Va. 891, 895, 103 

S.E.2d 240, 244 (1958)). 

 In ruling on Nutter's motion for summary judgment, the 

circuit court found that the contested provision of the 

Addendum is contrary to public policy because it violates DR 2-

106(A). Accordingly, the court declared the provision 

unenforceable. In effect, the court used the disciplinary rule 

to measure whether the contested provision violates public 

policy, thereby elevating DR 2-106(A) to the status of 

decisional or statutory law. We question the propriety of 

equating the force of a disciplinary rule with that of 

decisional or statutory law in light of our decisions in Carter 

v. Williams, 246 Va. 53, 60, 431 S.E.2d 297, 30l (1993), and 

Ayyildiz v. Kidd, 220 Va. 1080, 1085, 266 S.E.2d 108, 112 

(1980). In those cases, we held that the Code of Professional 

Responsibility does not provide the basis for a private cause 

of action. However, for the purpose of this decision, we 

assume, without deciding, that a disciplinary rule may properly 

be considered in determining the public policy of this 
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Commonwealth and conclude that the contested provision of the 

Addendum does not violate DR 2-106(A). 

 An examination of the purpose behind DR 2-106(A), as well 

as other jurisdictions' application of similar provisions, 

supports our conclusion that the Addendum's lease payment 

provision does not violate DR 2-106(A). The objective of DR 2-

106(A) is to make attorneys fully available to the public. In 

Jacob v. Norris, McLaughlin & Marcus, 607 A.2d 142 (N.J. 1992), 

the court explained the purpose of a disciplinary rule similar 

to DR 2-106(A): 

 The history behind the [rule] and its precursors 

reveals that the [rule's] underlying purpose is to 

ensure the freedom of clients to select counsel of 

their choice, despite its wording in terms of the 

lawyer's right to practice. The [rule] is thus 

designed to serve the public interest in maximum 

access to lawyers and to preclude commercial 

arrangements that interfere with that goal. 

Id. at 146. 

 Given this purpose, courts in other jurisdictions have 

applied rules of professional conduct, similar if not identical 

to DR 2-106(A), to prohibit agreements that impose financial 

disincentives, as opposed to explicit restrictions, on a 

withdrawing partner's competition with the former firm. See

Stevens v. Rooks Pitts & Poust, 682 N.E.2d 1125, 1132 (Ill. 

1997) (holding that provision requiring departing lawyer to 

forego compensation if he competed with firm in certain 

geographic area was unenforceable and in contravention of 

public policy underlying disciplinary rule); accord Pierce v. 
 7 

Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d 765, 

769 (Ala. 1996); Jacob v. Norris, McLaughlin & Marcus, 607 A.2d 

at 148-49; Denburg v. Parker Chapin Flattau & Klimpl, 624 

N.E.2d 995, 999 (N.Y. 1993); Gray v. Martin, 663 P.2d 1285, 

1290-91 (Or. Ct. App. 1983); Spiegel v. Thomas, Mann & Smith, 

P.C., 811 S.W.2d 528, 531 (Tenn. 1991); Whiteside v. Griffis & 

Griffis, 902 S.W.2d 739, 743-44 (Tex. App. 1995). But see

Howard v. Babcock, 863 P.2d 150, 160 (Cal. 1993). Unlike the 

Addendum's lease payment provision, the purpose of the 

agreements in these cases was to restrict competition. In 

order to accomplish that purpose, they imposed monetary 

penalties if the withdrawing attorney practiced law within a 

particular geographic area, practiced a particular kind of law, 

or represented former clients of the firm. 

 In contrast, the intent of the Addendum's contested 

provision was not to restrict Nutter's competition with 

Shuttleworth if he left the firm and continued to practice law; 

rather, it was to insure that Shuttleworth had the financial 

means with which to make the lease payments. The terms of the 

lease payment provision evidence such an intent. First, the 

provision does not contain any restrictions common to 

noncompetition agreements. Nutter's obligation to pay his 

proportionate share of the monthly lease payments was not 

triggered by his practice of law as to geographic area, subject 

matter, or clientele. Second, during the first five years of 
 8 

the lease, Nutter was obligated to pay his share if he left 

Shuttleworth for any reason, except death, disability, 

acceptance of a judicial position, or termination by a nonunanimous vote. Thus, Nutter's obligation during the first 

five years of the lease was not contingent on his continued 

practice of law if he left Shuttleworth. Accordingly, we find 

that the Addendum's lease payment provision does not contravene 

the purpose behind DR 2-106(A). 

 We, therefore, conclude that the Addendum's lease payment 

provision does not violate the literal terms of DR 2-106(A) or 

its underlying purpose. Accordingly, we will reverse the 

judgment of the circuit court and remand this case for a trial 

on the merits consistent with this opinion. 

Reversed and remanded.