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Unformatted text preview: blic interest in unfettered
competition among attorneys is no
Griffis, P.C., 902 S.W.2d 739, 744 (Tex.
greater than the public interest in
App. 1995) (internal citations omitted). As
unfettered competition in many
professions. The public interest in such, disincentives, whether direct or
freedom to choose one’s attorney,
indirect, may ultimately interfere with the
for [*175 example], is surely no
public’s right to choose because attorneys
more significant than the public
could be required to give up certain clients.
interest in choosing one’s doctor.
Attorneys’ covenants not to compete Correct_____ Incorrect_____
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. ¶4 This reasoning, however, is open to
attack. Doctors, accountants, and other
professionals routinely enter into nonKirstan Penasack, Student Author,
competition agreements, and the courts just
Abandoning the Per Se Rule Against
as routinely hold them enforceable if they
Law Firm Agreements Anticipating
Competition: Comment on Haight,
are “reasonable.” The public interest in
Brown & Bonesteel v. Superior Court
choosing one’s doctor is as important as the
of Los Angeles County, 5 Geo. J.
public interest in choosing one’s attorney.
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 selfpromulgated 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...
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This document was uploaded on 01/15/2014.
- Winter '14