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Primary Source
(as downloaded from Westlaw)
Whiteside v. Griffis & Griffis,
P.C., 902 S.W.2d 739, 744 (Tex. App. 1995).
The rationale behind the majority view is
clear. The purpose of DR 2-108 is to protect the public’s
right to select the attorney of their choice. Anderson,
461 N.W.2d at 601; Jacob, 607 A.2d at 148; Cohen,
550 N.E.2d at 411; Spiegel, 811 S.W.2d at 530; see 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The
Law of Lawyering § 5.6:101 (1990); Terry,
supra, at 1072; Draper, supra,
at 163; Penasack, supra, at 901-03; Tex. Comm. on
Professional Ethics, Op. 422, 48 Tex.B.J. 209 (1985).Indirect
financial disincentives may interfere with this right just
as much as direct covenants not to compete. A provision offering
financial disincentives may force lawyers to give up their
clients, thereby interfering with the client’s freedom
of choice. Anderson, 461 N.W.2d at 601; Jacob,
607 A.2d at 148; Cohen, 550 N.E.2d at 411; Spiegel,
811 S.W.2d at 530; Hillman, supra,§
2.3.3.2,at 32. This violates both the language and spirit
of DR 2-108 by restricting the practice of law.
Whiteside directs us to a California Supreme
Court opinion adopting the contrary position. See Howard
v. Babcock,6 Cal.4th 409, 25 Cal.Rptr.2d 80,863 P.2d
150(1993. In Howard, the court held that an agreement
imposing a reasonable cost on departing partners who compete
with the firm in a limited area is enforceable. Id. at 90,863 P.2d at 160.
Secondary Sources
(as downloaded from Westlaw)
Glen S. Draper, Student Author, Enforcing
Lawyers’ Covenants Not to Compete, 69 Wash. L.
Rev. 161, 174-75 (1994).
The public interest in unfettered competition
among attorneys is no greater than the public interest in
many professions. The public interest in freedom to choose
one’s attorney, for [*175] example, is surely no more
significant than the public interest in choosing one’s
doctor. Attorneys’ covenants not to compete are no more
injurious to the public than those between other professionals.
Therefore, courts should abandon the per se rule which applies
solely to attorneys’ covenants not to compete in favor
of the reasonableness rule applicable to all other professions.
Kirstan Penasack, Student Author,
Abandoning the Per Se Rule Against Law Firm Agreements Anticipating
Competition: Comment on Haight, Brown & Bonesteel v. Superior
Court of Los Angeles County, 5 Geo. J. Leg. Ethics 889, 892
(1992).
*892 Agreements anticipating competition would
serve to ameliorate the effects of grabbing, except that courts
routinely invalidate these agreements between lawyers. Why?
The courts rely heavily on decisions of the profession’s
own bar ethics committees, which invalidate these agreements
as violations of self-promulgated ethical standards. The crux
of the problem is the profession’s powerful, yet little
known, [FN14] per se ban on restrictive covenants of any form.
The per se ban originated within the American Bar Association
in 1961, was subsequently adopted in both the Model Code and
the Model Rules, and has universally prevailed in state courts
as well as bar ethics committees for three decades. Model
Rule 5.6 and its Model Code counterpart DR 2-108, which forbid
restrictions on the right of a lawyer to practice law, have
been justified by the need for lawyer personal autonomy and
the principle that clients should have an unfettered right
to choose representation from the widest pool of lawyers.
The California Court of Appeal, in Haight,
Brown & Bonesteel v. Superior Court of Los Angeles Co.,
[FN15] recently rejected the per se rule that resulted in
the invalidation of agreements anticipating competition. The
court recognized the principle of client choice, the traditional
justification for invalidating outright bans on competition,
but refused to hold that this public policy “places
lawyers in a class apart from other business and professional
partnerships,”[FN16] in which reasonable covenants not
to compete are upheld as a valid means of protecting firms’
legitimate interests. . . .
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Sample Student Memorandum
[1] Although agreements anticipating
competition, like the one at issue, may ultimately prevent
client grabbing, the courts often hold that the agreements
are unenforceable. Kirstan Penasack, Student Author, Abandoning
the Per Se Rule Against Law Firm Agreements Anticipating Competition:
Comment on Haight, Brown & Bonesteel v. Superior Court
of Los Angeles County, 5 Geo. J. Leg. Ethics 889, 892
(1992).
Correct_____ Incorrect_____
[2] In holding these agreements
unenforceable, the courts routinely rely on the legal profession’s
own per se ban on restrictive covenants of any form. The per
se ban originated within the American Bar Association in 1961,
was subsequently adopted in both the Model Code and the Model
Rules, and has universally prevailed in state courts as well
as bar ethics committees for three decades. Model Rule 5.6
and its Model Code counterpart DR 2-108, which forbid restrictions
on the right of the lawyer to practice law, have been justified
by the need for a lawyer's personal autonomy and the principle
that clients should have an unfettered right to choose representation
from the widest possible pool of lawyers.
Correct_____ Incorrect_____
[3] Courts following the majority rule reason that the public
has a right to choose their attorneys. Whiteside v. Griffis & Griffis,
P.C., 902 S.W.2d 739, 744 (Tex. App. 1995) (internal citations
omitted). As such, disincentives, whether direct or indirect,
may ultimately interfere with the public’s right to choose
because attorneys could be required to give up certain clients.
Correct_____ Incorrect_____
[4] This reasoning, however, is open to attack. Doctors,
accountants, and other professionals routinely enter into
non-competition
agreements, and the courts just as routinely hold them enforceable
if they are “reasonable.” The public interest
in choosing one’s doctor is as important as the public
interest in choosing one’s attorney.
Correct_____ Incorrect_____
[5] Recently, however, at least one jurisdiction, California,
has refused to follow the per se rule followed by the vast
majority of courts. See Penasack, 5 Geo. J. Leg. Ethics
at 892.
Correct_____ Incorrect_____
[6] Plaintiff Morgan Haley will rely on Howard
v. Babcock,
863 P.2d 150 (Cal. 1993). In that case, the court held
that an
agreement imposing a reasonable cost on departing partners
who compete with the firm in a limited area is enforceable.
Correct_____ Incorrect_____
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