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Unformatted text preview: Ethics 889,
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,§ 126.96.36.199,at 32.
This violates both the language and
spirit of DR 2-108 by restricting
the practice of law. ¶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
Whiteside directs us to a
5.6 and its Model Code counterpart DR 2California Supreme Court opinion
108, which forbid restrictions on the right
adopting the contrary position. See
Howard v. Babcock,6 Cal.4th 409, 25 of the lawyer to practice law, have been
Cal.Rptr.2d 80,863 P.2d 150(1993).
justified by the need for a lawyer’s
In Howard, the court held that an
personal autonomy and the principle that
agreement imposing a reasonable
clients should have an unfettered right to
cost on departing partners who
choose representation from the widest
compete with the firm in a limited
area is enforceable. Id. at 90,863
possible pool of lawyers.
P.2d at 160.
Correct_____ Incorrect_____ 5 Secondary Sources (as downloaded from Westlaw) Continued from previous page. Glen S. Draper, Student Author,
Enforcing Lawyers’ Covenants Not to
Compete, 69 Wash. L. Rev. 161, 17475 (1994). ¶3 Courts following the majority rule
reason that the public has a right to choose
their attorneys. Whiteside v. Griffis &
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This document was uploaded on 01/15/2014.
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