Enforcing lawyer non-competition agreements while maintaining the profession: The role of conflict of interest principles

Minnesota Law Review

Volumn 84, Issue 4, 2000, Pages 915-969

  Wilcox, Robert M ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 0346403963     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (205)

1. See generally Howard v. Babcock, 863 P.2d 150 (Cal. 1993); ROBERT W. HlLLMAN, HlLLMAN ON LAWYER MOBILITY: THE LAW AND ETHICS OF PARTNER WITHDRAWALS AND LAW FIRM BREAKUPS §l.l (2d ed. 1998);
2. Leslie D. Corwin, Response to Loyalty in the Firm: A Statement of General Principles on the Duties of Partners Withdrawing from Law Firms, 55 WASH. & LEE L. REV. 1055 (1998);
3. William H. Rehnquist, The Legal Profession Today, 62 IND. L.J. 151 (1986).
4. These agreements typically impose either a direct or indirect restriction upon competition by the departing lawyer. A direct restriction prohibits the practice of law by a former member of the firm within a specified sector of the market, defined typically by factors such as time, geography, clientele, and type of practice. See cases cited infra note 5. An indirect restriction does not prohibit the practice of law, but discourages competition by creating a significant economic disincentive to engage in certain types of practice. See cases cited infra note 6.
5. See Howard, 863 P.2d at 157. See generally Kirstan Penasack, Comment, Abandoning the Per Se Rule Against Law Firm Competition: Comment on Haight, Brown & Bonesteel v. Superior Court of Los Angeles County, 5 GEO. J. LEGAL ETHICS 889 (1992).
6. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.6 (1983). Model Rules of Professional Conduct (RFC) Rule 5.6 prohibits a lawyer from entering into any partnership or employment agreement "that restricts the rights of a lawyer to practice after termination of the relationship." Id.; see infra note 16 for the complete text of Rule 5.6. A similar provision is in the Model Code of Professional Responsibility (CPR). MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 2-108(a) (1969).
7. See, e.g., Dowd & Dowd Ltd. v. Gleason, 693 N.E.2d 369 (111. 1998) (refusing to enforce a clause in an employment agreement with departing members of a professional corporation that prohibited any solicitation of firm clients by a departing lawyer, without consent of the firm, within two years after termination of the employment agreement); White v. Medical Review Consultants, Inc., 831 S.W.2d 662, 665 (Mo. Ct. App. 1992) (holding that a lawyer's covenant not to compete contained in an employment agreement is void); Dwyer v. Jung, 336 A.2d 498, 501 (N.J. Super. Ct. Ch. Div. 1975) (holding unenforceable a provision in a partnership agreement designating clients of each lawyer and barring any lawyer from representing another lawyer's designated clients for a time after termination of the partnership); In re Silverberg, 427 N.Y.S.2d 480, 482-83 (App. Div. 1980) (refusing to allow enforcement of a partnership agreement that allocated clients between the partners and prohibited each partner from representing the other's clients for a period of time after dissolution of the firm); Law Offices of Windle Turley v. Giunta, No. 05-91-00776-CV, 1992 WL 57464, at 2-3 (Tex. App. Mar. 23, 1992) (refusing to enforce a clause in an associate's employment contract that barred the lawyer from entering into a professional relationship with any other former employee of the firm for a period of time after leaving the firm); Cohen v. Graham, 722 P.2d 1388, 1391 (Wash. Ct. App. 1986) (distinguishing permissible covenant by departing lawyer not to contact clients of firm from an impermissible covenant not to represent clients of firm); see also Supreme Ct. of Ohio Bd. of Comm'rs on Grievances and Discipline Op. 98-5 (1998) (stating that a "lawyer and a law firm may not... participate in a partnership or employment agreement that interferes with the client's choice of counsel by placing financial or geographical restrictions on a departing lawyer's right to practice"). In Williams & Montgomery, Ltd. v. Stellato, 552 N.E.2d 1100 (111. App. Ct. 1990), the court did not base its refusal to enforce a non-competition agreement among partners upon public policy grounds, but rather upon the conclusion that the firm had failed to demonstrate a protectable interest in maintaining its client relationships. See id. at 1106-07; infra Part IV. In People v. Wilson, 953 P.2d 1292 (Colo. 1998), the court censured a lawyer who had attempted to enforce an agreement with a former associate of the firm that allocated to the firm 75% of any fee earned by the departing lawyer from a client who had fired the firm or 100% of any fee earned from a former client of the firm who had been solicited by the departing lawyer. See id. at 1293-94. The censure, however, was based upon an improper division of legal fees disproportionate to the work performed. See id. at 1294.
8. See, e.g., Peroff v. Liddy, Sullivan, Galway, Begier & PerofF, P.C., 852 F. Supp. 239, 243 (S.D.N.Y. 1994) (invalidating a provision of a shareholder agree-ment that conditioned payment of a portion of the firm's value upon the lawyer not continuing to represent firm clients, but holding that the valuation of the firm should not take into account the firm's goodwill); Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d 765, 769-70 (Ala. 1996) (finding that a clause in a partnership agreement that conditioned a deferred compensation payment to a retiring lawyer upon the lawyer not practicing within a certain geographical area "creates a significant economic disincentive that impermissibly restrains" the lawyer's right to practice law); Blackburn v. Sweeney, 637 N.E.2d 1340, 1344 (Ind. Ct. App. 1994) (finding that a termination of a partnership agreement that allocated areas in which each lawyer could not advertise is an impermissible restraint on practice); Andersen v. Aspelmeier, Fisch, Power, Warner & Engberg, 461 N.W.2d 598, 602-03 (Iowa 1990) (finding that the choice by clients to follow a departing lawyer is not sufficiently detrimental to the law firm to justify a reduced compensation for the departing lawyer's partnership interest); Minge v. Weeks, 629 So. 2d 545, 547 (La. Ct. App. 1994) (refusing to enforce a provision of the employment agreement that required a departing associate to pay to the firm 80% of any fee earned from work done for a firm client); Jacob v. Noms, McLaughlin & Marcus, 607 A.2d 142, 154 (N.J. 1992) (refusing to enforce conditions of a law firm service termination agreement that denied termination compensation to departing members who subsequently competed with the firm); Weiss v. Carpenter, Bennett & Morrissey, 646 A.2d 473, 480-81 (N.J. Super. Ct. App. Div. 1994), affd, 672 A.2d 1132 (N.J. 1996) (invalidating a partnership agreement provision that reduced the payment upon withdrawal if the lawyer left the firm before age 65 for a reason other than death, disability, or judicial appointment); Katchen v. Wolff & Samson, 610 A.2d 415, 419-20 (N.J. Super. Ct. App. Div. 1992) (refusing to enforce a provision in a stockholder agreement under which any withdrawing stockholder forfeited any equitable interest in the firm); Denburg v. Parker Chapin Flattau & Klimpl, 624 N.E.2d 995, 1001 (N.Y. 1993) (invalidating provision of a partnership agreement that required a payment by the departing lawyer to his former law firm if the lawyer practiced within five years of departure); Cohen v. Lord, Day & Lord, 550 N.E.2d 410, 412-413 (N.Y. 1989) (refusing to enforce a provision in a partnership agreement that conditioned the deferred payment of earned fees to a departing lawyer upon the lawyer not continuing to practice law); Judge v. Bartlett, Pontiff, Stewart & Rhodes P.C., 610 N.Y.S.2d 412, 414 (App. Div. 1994) (voiding a provision in an employment agreement that conditioned payment of most of a termination benefit upon the departing lawyer not practicing law within a specified geographic area for a five year period after departure); Hagen v. O'Connell, Goyak & Ball, P.C., 683 P.2d 563, 565 (Or. Ct. App. 1984) (refusing to enforce a provision of a shareholder agreement that imposed a 40% penalty upon the value of the lawyer's interest in the professional corporation unless the lawyer entered into a binding non-competition agreement); Gray v. Martin, 663 P.2d 1285, 1290 (Or. Ct. App. 1983) (invalidating a provision in a partnership agreement that reduced the amount paid for a departing partner's interest if the departing lawyer continued to practice in the local area); Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528, 530-31 (Term. 1991) (voiding a condition in a stockholder agreement where the deferred compensation would be paid only if the departing lawyer did not continue to practice law); Whiteside v. Griffis & Griffis, P.C., 902 S.W.2d 739, 744-45 (Tex. App. 1995) (finding a provision of a professional corporation shareholder agreement void to the extent that a payment for a firm's goodwill was conditioned upon the departing lawyer not competing within a certain time and area). But see Kelly v. Smith, 588 N.E.2d 1306, 1313-14 (Ind. Ct. App. 1992) (upholding a provision requiring a departing lawyer to pay the old firm 80% of fees earned on removed matters); Feldman v. Minars, 658 N.Y.S.2d 614, 616-17 (App. Div. 1997) (suggesting that a restriction included in a settlement agreement limiting a lawyer's future practice may be enforced even if prohibited by disciplinary rule). In Ragen, the court, while rejecting a penalty clause, allowed the firm to adjust the value of its stock to account for "the effect created when a withdrawing shareholder takes clients from the firm." 683 P.2d at 565; see infra text accompanying notes 138-39.
9. See, e.g., Phoenix Orthopaedic Surgeons Ltd. v. Peairs, 790 P.2d 752, 757-58 (Ariz. Ct. App. 1989); Duffner v. Alberty, 718 S.\V.2d 111 (Ark. App. 1986); Darugar v. Hodges, 471 S.E.2d 33 (Ga. Ct. App. 1996) (evaluating a noncompetition clause between physicians under a reasonability test and finding the clause unreasonable because it did not limit restrictions to competition for patients from the former practice); Saxton v. Coastal Dialysis & Med. Clinic, Inc., 470 S.E.2d 252, 255 (Ga. Ct. App. 1996) (applying a reasonability test and enforcing a non-competition clause in an employment agreement between a doctor and a clinic); McAlpin v. Coweta Fayette Surgical Assocs., P.C., 458 S.E.2d 499, 502 (Ga. Ct. App. 1995) (applying a reasonability test to a non-competition agreement among physicians); Dick v. Geist, 693 P.2d 1133, 1135 (Idaho Ct. App. 1983); Weber v. Tillman, 913 P.2d 84, 96-97 (Kan. 1996) (enforcing a noncompetition agreement among physicians as a reasonable contractual agreement); Iredell Digestive Disease Clinic, P.A. v. Petrozza, 373 S.E.2d 449 (N.C. Ct. App. 1988), affd 377 S.E.2d 750 (N.C. 1989); Karlin v. Weinberg, 390 A.2d 1161, 1169 (N.J. 1978) (applying a reasonability test to a non-competition agreement among dermatologists); Holzer Clinic, Inc. v. Simpson, No. 97CA9, 1998 WL 241887, at 6-7 (Ohio App. Apr. 28,1998) (applying a reasonability test to a non-competition agreement between a physician and former employer).
10. See infra text accompanying notes 22-52. Although most courts do not explicitly describe their analysis as the application of a per se rule, that characterization has been used by a number of commentators. See, e.g., Stephen E. Kalish, Covenants Not to Compete and the Legal Profession, 29 ST. LOUIS U. L.J. 423, 425 (1985);
11. Mark W. Bennett, Note, You Can Take It With You: The Ethics of Lawyer Departure and Solicitation of Firm Clients, 10 GEO. J. LEGAL ETHICS 395, 417-18 (1996);
12. Penasack, supra note 3, at 893. A well-considered law review article that discusses the impact of this approach upon the law firm structure is Larry E. Ribstein, Ethical Rules, Agency Costs, and Law Firm Structure, 84 VA. L. REV. 1707, 1730 (1998).
13. Other law review commentaries on lawyer non-competition agreements are cited in Joseph M. Perillo, The Law of Lawyers' Contracts Is Different, 67 FORDHAM L. REV. 443, 477 n.235 (1998).
14. See infra text accompanying notes 53-61.
15. See Dowd & Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 369 (111. 1998) (finding that the bar on non-competition agreements among lawyers "is designed both to afford clients greater freedom in choosing counsel and to protect lawyers from onerous conditions that would unduly limit their mobility").
16. See, e.g., Jacob, 607 A.2d at 146 (stating that the ethical bar "is designed to serve the public interest in maximum access to lawyers"); Cohen, 550 N.E.2d at 413 ("While a law firm has a legitimate interest in its own survival and economic well-being and in maintaining its clients, it cannot protect those interests by... restricting the choices of the clients to retain and continue the withdraw' ing member as counsel...." (citations omitted)); see also cases cited supra note 6.
17. Howard v. Babcock, 863 P.2d 150, 161 (Cal. 1993) (Kennard, J., dissenting).
18. Id. at 156.
19. See infra text accompanying notes 120,140-46,152-74.
20. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 2-108CA) (1969).
21. Model Rule 5.6 provides as follows: A lawyer shall not participate in offering or making: (a) A partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) An agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.6 (1983). DR 2-l08(a) in the earlier CPR is similar. The Restatement of the Law Governing Lawyers §14 adopts language nearly identical to that of RFC Rule 5.6. See RESTATEMENT OF THE LAW GOVERNING LAWYERS §14 (Proposed Draft 1998). For a recent discussion of whether a provision falls within the retirement benefit exception, see Neuman v. Akman, 715 A.2d 127,136-38 (D.C. 1998).
22. See, e.g., Dowd & Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 368-70 (111. 1998) ("[T]he foundation for Rule 5.6 rests on considerations of public policy, and it would be inimical to public policy to give effect to the offending provisions."); Weiss v. Carpenter, Bennett, & Morrissey, 646 A.2d 473, 478 (N.J. Super. Ct. App. Div. 1994), affd, 672 A.2d 1132 (N.J. 1996) (relying on Rule 5.6 as reflecting a determination that non-competition agreements among lawyers violate public policy), Gray v. Martin, 663 P.2d 1285, 1290 (Or. App. 1983) ("The question remains whether the fact that the paragraph violates a disciplinary rule makes it unenforceable. We conclude that it does in this case."). But see Feldman v. Minars, 658 N.Y.S.2d 614, 616-17 (App. Div. 1997) (distinguishing restrictions on practice set forth in a settlement agreement and suggesting that those restrictions may be enforceable even if they violate a disciplinary rule).
23. Peroff v. Liddy, Sullivan, Galway, Begier & Peroff, P.C., 852 F. Supp. 239, 242 (S.D.N.Y. 1994).
24. Analysis is advanced little by the circular reasoning that noncompetition agreements are barred by disciplinary rules because they are contrary to public policy and that they are contrary to public policy because they are barred by disciplinary rules. The New Jersey Supreme Court, however, engaged in reasoning nearly as circuitous in attempting to explain why lawyers may not enter into non-competition agreements, but doctors can. The court found that the adoption of a disciplinary rule prohibiting non-competition agreements among lawyers was based upon a finding that enforcement would injure the public interest. The court reasoned further that, because no such rule had been adopted to govern doctors, a similar agreement among doctors must not violate public policy and could be enforced. See Karlin v. Weinberg, 390 A.2d 1161, 1168 (N.J. 1978).
25. See ABA Comm. on Professional Ethics, Informal Op. 521 (1962).
26. See ABA Comm. on Professional Ethics, Informal Op. 1072 (1968) (overruling Informal Opinion 521).
27. 336 A.2d 498 (N.J. Super. Ct. Ch. Div.), affd, 348 A.2d 208 (N.J. Super. Ct. App. Div. 1975).
28. See id. at 499.
29. See id.
30. Id. at 500.
31. ABA Comm. on Professional Ethics, Formal Op. 300 (1961).
32. Id. In 1990, the American Bar Association (ABA) added Rule 1.17 to the RFC authorizing the sale of a law practice if the "seller ceases to engage in the private practice of law" in an area in which the law firm has practiced. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.17 (1998). The Comment to Rule 1.17 reiterates the view, however, that "[t]he practice of law is a profession, not merely a business. Clients are not commodities that can be purchased and sold at will." MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.17 cmt. (1998).
33. No advertising of any type by lawyers was allowed until after the United States Supreme Court's decision in Bates v. State Bar, 433 U.S. 350, 384 (1977).
34. ABA Comm. on Professional Ethics, Formal Op. 300 (1961).
35. Id. (emphasis added).
36. ABA Comm. on Professional Ethics, Informal Op. 521 (1962).
37. See id.
38. Id.
39. Professor Kalish discusses the case law prior to 1960 that supported this assumption. See Kalish, supra note 8, at 427-29. For a comparable current view of non-competition agreements in the medical profession, see infra note 133.
40. ABA Comm. on Professional Ethics, Informal Op. 1072 (1968).
41. Id.
42. HILLMAN, supra note 1, §2.3.3. Professor Hillman defines "grabbing" as the taking of clients from a firm. See id. §1.1 n.13.
43. See In re Silverberg, 427 N.Y.S.2d 480,482 (App. Div. 1980).
44. Id.
45. 550 N.E.2d 410 (N.Y. 1989).
46. Id. at 411 (citing ABA Comm. on Professional Ethics, Informal Op. 1072 (1968)).
47. Id.
48. Id.
49. 7d.at413.
50. Id. (citing Post v. Merrill Lynch, Pierce, Fenner & Smith, 48 N.Y.2d 84, 89 (1979)).
51. Id. at 415 (Hancock, J., dissenting). Despite Judge Hancock's inability to persuade a majority to this view in Cohen, the Appellate Division of the New York Supreme Court more recently set forth a similar argument in dicta discussing a restriction on practice set forth in an earlier settlement agreement to which the lawyer had been a party. The court, in disqualifying the law firm from a subsequent matter because the law firm had solicited the client in violation of the restriction, observed that it would appear inequitable to allow lawyers who had agreed to a restriction on practice to later use "their own ethical violations as a basis for avoiding obligations undertaken by them." Feldman v. Minars, 658 N.Y.S.2d 614, 617 (App. Div. 1997).
52. 588 A.2d 1287 (N.J. Super. Ct. App. Div. 1991), rev'd, 607 A.2d 142 (N.J. 1992).
53. Mat 1291.
54. Jacob v. Norris, McLaughlin & Marcus, 607 A.2d 142, 146 (N.J. 1992), rev'g 588 A.2d 1287 (N.J. Super. Ct. App. Div. 1991)
55. W. at 151.
56. See cases cited supra notes 5-6.
57. Dovvd & Dovvd, Ltd. v. Gleason, 693 N.E.2d 358, 369 (111. 1998);
58. see also Commission on Prof 1 Resp. of the Ass'n of the Bar of the City of N.Y., Ethical Issues Arising When a Lawyer Leaves a Firm: Restrictions on Practice, 20 FORDHAM URB. L.J. 897, 897 (1993) (indicating that the rule barring noncompetition agreements among lawyers "serves the salutary purpose of protecting attorneys, particularly newer members of the bar, from bargaining away their right to open their own office or move to another firm");
59. Neil W. Hamilton, Are We a Profession or Merely a Business? The Erosion of Rule 5.6 and the Bar Against Restrictions on the Right to Practice, 22 WM. MlTCHELL L. REV. 1409, 1413-14 (1996);
60. Robert W. Hillman, Loyalty in the Firm: A Statement of General Principles on the Duties of Partners Withdrawing from Law Firms, 55 WASH. & LEE L. REV. 997,1014 (1998).
61. Maine also apparently permits non-competition agreements among lawyers because it has no equivalent of RFC Rule 5.6 in the Maine Bar Rules. See Board of Overseers of the Bar, Profl Ethics Comm'n Op. 126 (1992) (digested in THE BUREAU OF NAT"L AFFAIRS, INC., AMERICAN BAR. ASS'N, ABA/BNA LAWYERS MANUAL ON PROFESSIONAL CONDUCT §1001:4203 (1994)).
62. 863 P.2d 150,157 (Cal. 1993).
63. Id.
64. See id. at 151.
65. See CAL. Bus. & PROF. CODE §16602 (West 1997).
66. Howard v. Babcock, 7 Cal. Rptr. 2d 687, 690 (Ct. App. 1992), affd in part & rev'd in part, 863 P.2d 150 (Cal. 1993).
67. Howard, 863 P.2d at 158.
68. Id. at 158-59.
69. Mat 160.
70. See RESTATEMENT (SECOND) OF CONTRACTS §188, cmt. b (1981).
71. 7d §188(l)(b).
72. As noted above, some mention is made still of a need to protect the restricted lawyer from a poor bargain. This justification, however, also does not withstand scrutiny. See supra note 52 and accompanying text. When there is grossly unequal bargaining position, the court may find that the non-competition agreement is not supported by sufficient bargained-for consideration. See infra note 132 and accompanying text. In those cases the court may refuse enforcement on simple contract principles. The possibility that some agreements may not be enforceable for lack of consideration, however, does not justify refusing to enforce also those agreements that are the product of bargaining. Courts have enforced non-competition agreements against employees with far less sophisticated bargaining skills than can be expected even of new members of the bar. In considering the enforceability of non-competition agreements between technicians and their employer who supplied the workers to the Tennessee Valley Authority, the Eleventh Circuit noted, in Consultants & Designers, Inc. v. Butler Service Group, Inc., 720 F.2d 1553, 1560 (llth Cir. 1983), that "[w]hat we are dealing with are contracts made between and among consenting adults and corporations. Presumably they will act in such a way as to maximize their individual welfare, and it would be presumptuous and harmful if we were to substitute our ex-post judgment for their ex-ante choice." No case has suggested that lawyers as a group deserve greater relief from the legal ramifications of their own poor choices.
73. See infra Part TV for a discussion of law firms' interests in the enforcement of non-competition agreements.
74. See Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d 765, 767 (Ala. 1996) (concerning a geographic restriction); Supreme Ct. of Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 98-5 (1998) (discussing recommended practices when lawyers leave a firm and continue to practice in the same geographic area).
75. See Dwyer v. Jung, 336 A.2d 498, 499 (N.J. Super. Ct. Ch. Div.), affd 348 A.2d 208 (N.J. Super. Ct. App. Div. 1975); In re Silverberg, 427 N.Y.S.2d 480, 481-82 (App. Div. 1980).
76. See Blackburn v. Sweeney, 637 N.E.2d 1340, 1341-42 (Ind. Ct. App. 1994), vacated, 659 N.E.2d 131 (Ind. 1995); Feldman v. Minars, 658 N.Y.S.2d 614, 615 (App. Div. 1997) (involving a non-solicitation clause in agreement settling a client's lawsuit). The restraint only on advertising and solicitation is simply a less restrictive method of protecting the same employer interests as may be asserted to support a more restrictive ban on practice.
77. See, e.g., Cobb Family Dentistry, P.C. v. Reich, 383 S.E.2d 891, 892 (Ga. 1989) (holding that reasonable non-competition agreements among dentists are enforceable); Holloway v. Faw, Casson & Co., 572 A.2d 510, 517 (Md. 1990) (holding that reasonable non-competition agreements among certified public accountants are enforceable); see also cases cited supra note 7.
78. A typical expression of the public interest is that used by the New Jersey Superior Court, in Dwyer, 336 A.2d at 500, finding that a "client is always entitled to be represented by counsel of his own choosing." Leslie Corwin describes a client's "right to counsel of his own choice" traced to the Bill of Rights and protecting "the right of a client to stay with counsel of his own choice when a partner departs." Convin, supra note 1, at 1060.
79. Jacob v. Noms, McLaughlin & Marcus, 607 A.2d 142,146 (N.J. 1992).
80. See infra Part VI for a discussion of situations creating a scarcity of choice.
81. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.16(c) (1983).
82. See Howard v. Babcock, 863 P.2d 150,158-59 (Gal. 1993). In arguing for repeal of MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.6(b), which bars , practice restrictions in an agreement settling a client's private dispute, Professor Stephen Gillers rejected the justification that the rule protects client choice of counsel, making a point similar to the one set forth here. "Surely, it cannot be true that the profession's duty to help make counsel available requires individual lawyers to keep themselves free to serve clients. Absent court order, lawyers may reject clients outright and without a reason." Stephen Gillers, A Rule Without a Reason, A.B.A. J., Oct. 1993, at 118,118.
83. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.2 cmt.;
84. GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 1.2:102 n.2 (2d ed. 1996); Kalish, supra note 8, at 450-51;
85. Robert Parker, NonCompete Agreements Between Lawyers: An Economic Analysis, RES GESTAE, Oct. 1996, at 12,15.
86. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1078 (1976). Some argue that even professional obligations to strive toward a goal of reasonable access for all to legal representation do not require a lawyer to undertake a civil representation that the lawyer finds to be morally objectionable, even if the lawyer is the "last lawyer in town."
87. Teresa Stanton Collett, The Common Good and the Duty to Represent: Must the Last Lawyer in Town Take Any Case?, 40 S. TEX. L. REV. 137,178-79 (1999).
88. See infra Part VI. It might be argued that if legal services are so scarce that enforcement of a non-competition agreement would deny members of the public any choice of counsel, the existence of an effective monopoly might adversely affect public access to the legal system, creating a harm of broader public concern. Otherwise, enforcement of an agreement affects only those persons specifically seeking the services of the restricted lawyer.
89. See supra text accompanying note 70.
90. RFC Rule 1.7 is the basic disciplinary rule governing conflicts between the interests of a lawyer and a current client. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7 (1983).
91. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §201 (Proposed Final Draft No. 1, Mar. 1996).
92. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.10 (1983) (imputing disqualification of one lawyer to entire firm).
93. See supra text accompanying note 70.
94. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §73 (Tentative Draft No. 8, Mar. 1997) (regarding duty of care to non-clients).
95. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §27 (Proposed Final Draft No. 1, Mar. 1996). Even after a potential client has contacted a lawyer, the lawyer does not have a duty to decline conflicting representations unless the lawyer received relevant confidential information from the potential client. See id.
96. Blackmun v. Sweeney, 637 N.E.2d 1340, 1343 (Ind. Ct. App. 1994), vacated, 659 N.E.2d 131 (Ind. 1995); see also Dowd & Dowd, Ltd. v. Gleason, 693 N.E.2d 358, 369 (111. 1998) (finding that a non-solicitation clause violated Rule 5.6, but not addressing directly the distinction between agreements not to practice and agreements not to solicit). But see Cohen v. Graham, 722 P.2d 1388 (Wash. App. 1986) (upholding an arbitrator's decision that a restriction on representing firm clients was void, but an agreement not to contact firm clients was enforceable).
97. 433 U.S. 350 (1977).
98. See Feldman v. Minars, 658 N.Y.S.2d 614 (App. Div. 1997) (finding that public policy does not preclude enforcement of a provision in a settlement agreement that bars a lawyer from soliciting other clients to sue the same defendant).
99. Given the conflict of interest analysis, a separate RFC Rule 5.6 is superfluous. Existing conflict of interest rules, particularly RFC Rule 1.7, adequately guide the ethical conduct of a lawyer and protect the legitimate loyalty expectations of clients. An existing client adversely affected by a lawyer's entry into a non-competition agreement would be no less protected if Rule 5.6 did not exist. Instead of pursuing a grievance under Rule 5.6, the client could challenge the lawyer's undertaking on the ground that it created an impermissible conflict of interest under Rule 1.7.
100. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §202 cmt. g(iv) (Proposed Final Draft No. 1, Mar. 1996).
101. The Comment to RFC Rule 1.7 points out that once a conflict arises, the ability of the lawyer to continue to represent any of the clients is determined by Rule 1.9, which addresses conflicts between the interests of a current and a former client. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.9 (1983). Rule 1.9 may well require complete withdrawal by the conflicted lawyer. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §201 cmt. e (Proposed Final Draft No. 1, Mar. 1996).
102. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7(b)(2) (1983); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §201 cmt. e(i) (Proposed Final Draft No. 1, Mar. 1996).
103. See, e.g., Fred Siegel Co., L.P.A. v. Alter & Hadden, 707 N.E.2d 853 (Ohio 1989) (observing that the firm, not the individual lawyer, contracts with the client).
104. See cases cited supra note 7.
105. One reason that has been suggested for the difference in attitudes regarding enforcement, however, is that "the moral legitimacy of doctoring does not depend on universal access to physician services ... whereas the legitimacy of the legal profession rests on its availability to everyone." William M. Sage, Physicians as Advocates, 35 HOUS. L. REV. 1529, 1613 (1999). This argument, however, does not explain why non-competition agreements among lawyers have been rejected even when enforcement would not result in a shortage of available lawyers.
106. See, e.g., Duquette v. Superior Court, 778 P.2d 634 (Ariz. Ct. App. 1989); Gates v. Wilson, 350 S.E.2d 898 (N.C. Ct. App. 1986).
107. RESTATEMENT (SECOND) OF CONTRACTS §188 cmt. b (1979).
108. Rapp Ins. Agency, Inc. v. Baldree, 597 N.E.2d 936, 939 (111. App. Ct. 1992). For the covenant to be enforced, this interest must also outweigh any likely hardship to the promisor or public as a result of enforcement. See id.
109. See Dial Media, Inc. v. Schiff, 612 F. Supp. 1483,1490 n.5 (D.R.I. 1985); Boisen v. Petersen Flying Serv., Inc., 383 N.W.2d 29, 33 (Neb. 1986).
110. 863 P.2d 150, 161 (Cal. 1993) (Kennard, J., dissenting) (arguing that enforcement is acceptance of the view that "the practice of law has been so altered that it is now irretrievably profit-centered rather than client-centered").
111. Cohen v. Lord, Day & Lord, 550 N.E.2d 410, 413 (N.Y. 1989); see also Williams & Montgomery, Ltd. v. Stellate, 552 N.E.2d 1100,1106-07 (111. App. Ct. 1990) (suggesting that a protectable interest may exist, but concluding that the law firm had failed to prove a protectable interest in maintaining its client relationships).
112. Stellato, 552 N.E.2d at 1106, is one of the few cases involving a noncompetition agreement among lawyers that clearly applies a reasonability test and specifically identifies the lack of a sufficient employer interest.
113. 485 S.E.2d 248 (Ga. Ct. App. 1997).
114. See id. at 250.
115. See id.
116. 471 S.E.2d 33 (Ga. Ct. App. 1996). The same court, in McAlpin v. Coweta Fayette Surgical Assocs., P.C., 458 SJ2.2d 499 (Ga. Ct. App. 1995), had enforced a restriction on any medical practice within a designated area. In that case, however, the court did not identify the particular interest of the employer, other than a general discussion of the employer's interest in building and extending its practice.
117. Darugar, 471 S.E.2d at 36 (emphasis in original).
118. Id.
119. Chaichimansour, 485 S.E.2d at 250.
120. 510 S.E.2d 880 (Ga. Ct. App. 1999).
121. Id. at 884.
122. Id.
123. See LEIYU SHI & DOUGLAS A. SINGH, DELIVERING HEALTH CARE IN AMERICA: A SYSTEMS APPROACH 119 (1998) (citing 1992 study showing that "nearly 70 percent of all patient care physicians" in the United States are specialists).
124. Professor Ribstein suggests that a diversified law firm has certain economic advantages over a specialized firm. See Ribstein, supra note 8, at 1717-18.
125. A recent reminder of the continuing geographic limitations on the practice of law is the decision of the California Supreme Court in Birbrower, Montaibano, Condon & Frank, P.C. v. Superior Court, 949 P.2d 1 (Cal. 1998), cert denied, 119 S. Ct. 291 (1998) (indicating in dicta that a lawyer not licensed in California is practicing impermissibly in the state even if never physically present in California, if the lawyer advises a California client on California law about a California matter).
126. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.2(c) (1983).
127. 470 S.E.2d 252 (Ga. Ct. App.), affd, 476 S.E.2d 586 (Ga. 1996).
128. Id. at 255 (quoting from the findings of the trial court).
129. See Kalish, supra note 8, at 443-45.
130. See Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853 (Ohio 1999), reh'g denied, 709 N.E.2d 1216.
131. 913 P.2d 84 (Kan. 1996).
132. Forty to fifty percent of the departing doctor's patients had been patients of the former practice. The competition restriction, however, barred all practice in the designated geographic area and was not limited to only the treatment of former patients of the employer. See id. at 92.
133. Id.
134. Id.
135. Id.
136. Id.; cf. Canfield v. Spear, 254 N.E.2d 433, 434 (111. 1969) (placing importance upon fact that departing doctor had been "a newcomer to the community, and it was doubtless through the opportunities provided by this association [with the employer] that he became known in the city").
137. For a more comprehensive consideration of law firm goodwill, see Gary S. Rosin, The Hard Heart of the Enterprise: Goodwill and the Role of the Law Firm, 39 S. TEX. L. REV. 315 (1998).
138. A significant part of firm revenues are used to provide legal assistants and support staff. In addition, of course, the firm provides office space and insurance and invests in the equipment and libraries necessary to provide quality legal services. One commentator argues that a firm which invests a large amount of capital to build a new practice area and then loses that business in a split of the firm "is now in a worse position to deliver quality legal services in its traditional fields, and the clients which remain suffer as a consequence." Parker, supra note 76, at 16.
139. See Robert Hillman, The Impact of Partnership Law on the Legal Profession, 67 FORDHAM L. REV. 393, 393 (1998) ("Successful firms are more than the sum of their parts and, ideally, survive turnover in their memberships with minimal disruption. They invest heavily in building firm reputations in the hope of building a type of 'brand loyalty and differentiating themselves from the competition."). The existence and value of the law firm's reputation as an entity is acknowledged implicitly by a provision in the RFC allowing a law firm to operate under a trade name. This rule implicitly contemplates that a law firm will develop goodwill associated with its trade name and acknowledges that use of a trade name is consistent with a law firm's professional obligations. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.5(a) (1983).
140. See Ribstein, supra note 8, at 1730-41 (suggesting that enforcement of non-competition agreements in certain appropriate circumstances could lower costs for clients by allowing law firms to plan their development in a more orderly manner that benefits clients); Parker, supra note 76, at 12 (stating that the cost of "training is borne by the employer in the reasonable expectation that this investment will be recovered"). In some commercial settings, without a non-competition agreement, an employer may have little incentive to train employees beyond minimum levels because of the possibility that the employee will leave immediately, denying the employer the benefit of the training investment. In those situations, a non-competition agreement may encourage a greater investment in training by protecting against such opportunistic behavior of the employee in training. A non-competition agreement is not a necessary incentive to encourage employers of lawyers and doctors to train a new professional employee adequately. Lawyers and doctors already are required by professional regulation and legal duties of care to maintain an adequate level of training and competence. Thus, general experience and training are ordinary expectations of professional employment.
141. This approach is consistent with that taken in a non-professional context by the U.S. District Court for Rhode Island. The Court found that an employer had failed to prove that a former employee had "gained any unfair competitive advantage due to his former employment.... [A] n employee is entitled to use general knowledge and expertise learned during his employment to continue his livelihood...." Dial Media, Inc. v. Schiff, 612 F. Supp. 1483,1490 n.5 (D.R.1.1985).
142. Rash v. Toccoa Clinic Med. Assocs., 320 S.E.2d 170,173 (Ga. 1984). The existing practice of paying a premium salary to a relatively inexperienced lawyer who is perceived to have extraordinary potential, without requiring a noncompetition agreement, suggests that an even greater premium would be required to support inclusion of a non-competition agreement.
143. In Keeley v. Cardiovascular Surgical Assocs., P.C., 510 S.E.2d 880, 885 (Ga. Ct. App. 1999), the surgeon claimed that, even if a legitimate protectable interest were recognized, the covenant was unenforceable because it specified too large a restricted area. In deciding that issue, the court focused upon whether the non-competition agreement was truly bargained for and not the product of overreaching by an employer. Importantly, the doctor had not been a typical employee, but had an agreement to move from employment into an equal ownership position within 18 months. In its earlier decision in Rash, the court had noted that, although employees might receive no consideration for a non-competition agreement, partners were situated differently. When partners agree not to compete, "the consideration flows equally among the contracting parties." Rash, 320 S.E.2d at 173. Based upon that distinction, the court had developed differing levels of scrutiny depending upon the nature of the relationship between covenantor and covenantee. The physician's agreement to receive a partnership position within 18 months reflected a relative equality of bargaining power with the covenantee. As a result, "this covenant was not subject to the strict level of scrutiny accorded normal employment contracts, but to the middle level of reduced scrutiny accorded professional contracts where the parties are considered as having equal bargaining power." Keeley, 510 S.E.2d at 885. This differentiation in scrutiny based upon the relative bargaining power of the parties to the agreement is reminiscent of the position once taken by the ABA Comm. on Prof. Ethics and articulated in Informal Opinion 521. See supra text accompanying note 34.
144. Robert Parker argues that to "allow a firm to expend resources forming and nurturing such [client] relationships, but to prohibit the firm from protecting them against those who would seek to benefit personally from the expenditure of resources by the firm, is fundamentally unfair." Parker, supra note 76, at 13-14. Recognition of a lawyer's unmistakable "financial interest in the continued patronage" of a clientele, Howard v. Babcock, 863 P.2d 150, 157 (Gal. 1993), does not diminish in anyway the lawyer's traditional professional obligations to the client of loyalty, competency, and diligence. Nor does it suggest any impediment upon the client's ability to seek other counsel if the client desires.
145. See Hillman, supra note 129, at 393.
146. See Corti v. Fleisher, 417 N.E.2d 764, 768 (111. Ct. App. 1981) ("It is fundamental that the employment of one member of a law firm is the employment of all...."); Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853, 859 (Ohio 1999), reh'g denied, 709 N.E.2d 1216 (noting that clients employ a firm, not an individual lawyer); Kalish, supra note 8, at 441-43.
147. See, e.g., Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991); Dugan v. Dugan, 457 A.2d 1 (N.J. 1983); Hertz v. Hertz, 657 P.2d 1169 (N.M. 1983).
148. Hagen v. O'Connell, Goyak & Ball, P.C., 683 P.2d 563, 565 (Or. App. 1984).
149. Jacob v. Noms, McLaughlin & Marcus, 607 A.2d 142,152 (N.J. 1992).
150. A law firm has a recognized interest in fees to be earned under an existing fee agreement with the client, and interference with those anticipated revenues may be tortious. See Adler, Barish, Daniels, Levi & Creskoff v. Epstein, 393 A.2d 1175,1184-85 (Pa. 1978).
151. Paul L. Pratt, P.C. v. Blunt, 488 N.E.2d 1062,1068 (111. App. Ct. 1986).
152. See Kalish, supra note 8, at 439-41.
153. Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853, 859 (Ohio 1999), reh'g denied, 709 N.E.2d 1216.
154. Richette v. Solomon, 187 A.2d 910, 912 (Pa. 1963).
155. Compare Brown & Bins v. Lehman, No. C5-93-415,1993 WL 377101, at *4 (Minn. Ct. App. Sept. 28,1993) (holding that "[a]ny interference is actionable if a binding contract was in existence, 'even if the contract is terminable at wilP), with Koeppel v. Schroder, 505 N.Y.S.2d 666, 669 (App. Div. 1986) (holding that "[a] competitor who lawfully induces termination of a contract terminable at will commits no ethical violation and does not produce a result contrary to the expectations of the parties").
156. Pollack v. Calimag, 458 N.W.2d 591,599 (Wis. Ct. App. 1990).
157. Thompson v. Thompson, 576 So. 2d 267, 270 (Fla. 1991).
158. Id. at 269; cf. Hillman, supra note 129, at 393.
159. Thompson, 576 So. 2d at 269. But see Illinois St. Bar Ass'n, Adv. Op. on Prof. Conduct 84-15, 1985 WL 286868, at 2 (May 21, 1985) (finding that a fee splitting clause of an employment agreement would be unethical, because a law firm has no proprietary interest in its clients and "no ethical, legal or moral rights to the continued patronage of past clients who freely choose to retain the terminating partner or employee as their attorney").
160. Williams & Montgomery, Ltd. v. Stellato, 552 N.E.2d 1100, 1107 (111. App. Ct. 1990).
161. Rapp Ins. Agency, Inc. v. Baldree, 597 N.E.2d 936, 939 (111. App. Ct. 1992).
162. See supra text accompanying note 99.
163. See Joseph D. Shein, P.C. v. Myers, 576 A.2d 985, 986 (Pa. Super. Ct. 1990).
164. Id. at 986, 989.
165. See id. at 988-89.
166. Id, at 988-89.
167. Paul L. Pratt, P.C. v. Blunt, 488 N.E.2d 1062,1068 (111. App. Ct. 1986).
168. See id at 1065-66.
169. Id. at 1067.
170. See id at 1069, 1070 (upholding but limiting the scope of the injunction).
171. If a departing lawyer's professional relationship with a client is sufficiently close, however, the departing lawyer may not need to engage in any form of overt solicitation to attract the client from the firm. Is it unfair for the lawyer to take advantage of the close relationship developed at the old law firm? In rejecting a claim of intentional interference brought against a departing lawyer who had continued to represent old firm clients after departure from the firm, the District of Columbia Court of Appeals noted a strong individual relationship between firm clients and a departing lawyer, as well as an absence of any similar relationship between the clients and other firm members. See Connors, Piscina, Swartz & Zimmerly v. Rees, 599 A.2d 47, 51 (D.C. 1991). The law firm failed to show that clients had been drawn to the departing lawyer by any wrongdoing or misrepresentations on the part of the lawyer. See id. Instead, the clients testified simply that "they had a close and satisfying professional relationship with [the departing lawyer], that they had no relationship with any other attorney at [the old firm], and, in some instances, that they would have followed" the departing lawyer anywhere. Id. The lack of tortious conduct does not necessarily mean that subsequent competition is "fair" for purposes of considering whether a non-competition agreement is justified. When the clients identify exclusively with the individual lawyers and with no one else in the law firm, it is possible the firm had no sufficient relationship with the client to create an expectation of continued pa-tronage. Other courts have found, however, that strong individual professional relationships with a client still may not justify interference with a law firm's interest in its relationship with an existing client. For example, in 1983, the California courts heard a dispute between a law firm and two departing lawyers. See Rosenfeld, Meyer & Susman v. Cohen, 194 Cal. Rptr. 180, 184 (Ct. App. 1983). But see Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454 (Cal. 1994) (disapproving of Rosenfeld on a separate issue). A major litigation client discharged the law firm shortly after the two lawyers who had been primarily responsible for their matter left the firm. See Rosenfeld, 194 Cal. Rptr. at 185. The client hired the departing lawyers' new firm. See id. The old law firm, among other claims, alleged a breach of fiduciary duty and interference by the departing lawyers with existing contractual relations. See id. at 186. The court remanded the case for trial, noting that a lawyer "has no absolute privilege to interfere with contractual relations, whether those of his client or anyone else." Id. at 198. Although the departing lawyers had been the only partners familiar with the case, the court noted that the matter had substantially increased the expenses of the old firm. See id. at 184. The firm, for example, "was required to rent additional office space, hire additional support personnel... and employ additional attorneys to handle matters" that would otherwise have been handled by the partners working on the case. Id.
172. See RESTATEMENT (SECOND) OF TORTS 768 (1979).
173. See Graubard, Mollen, Dannett & Horowitz v. Moskovitz, 653 N.E.2d 1179, 1183 (N.Y. 1995); HlLLMAN, supra note 1, 4.8.2; RESTATEMENT (SECOND) OF AGENCY 393 cmt. e (1958).
174. See RESTATEMENT (SECOND) OF TORTS 768 (1979) (providing that a person who "intentionally causes a third person ... not to continue an existing contact terminable at will does not interfere improperly with the other's relation" if four factors are proven, including that "the actor does not employ wrongful means"). The privilege of fair competition was applied recently to a dispute between a lawyer and former law firm in Fred Siegel Co. v. Arter & Hadden, 707 N.E.2d 853, 860-61 (Ohio 1999). When "an existing contract is terminable at will, and where all the elements of Section 768 of the Restatement are met, a competitor may take action to attract business, even if that action results in an interference with another's existing contract." Id. at 860. The court remanded the case for trial on the question of whether the departing lawyer had "employed wrongful means" in competing with the former firm. Id. at 861.
175. Boisen v. Petersen Flying Serv., Inc., 383 N.W.2d 29,33 (Neb. 1986).
176. See Iowa Glass Depot, Inc. v. Jindrich, 338 N.W.2d 376 (Iowa 1983); Gary Van Zeeland Talent, Inc. v. Sandas, 267 N.W.2d 242 (Wis. 1978).
177. See Iowa Glass Depot, Inc., 338 N.W.2d at 383; Gary Van Zeeland Talent, Inc., 267 N.W.2d at 248-49.
178. Gary Van Zeeland Talent, Inc., 267 N.W.2d at 249.
179. See Arthur Young & Co. v. Black, 466 N.Y.S.2d 10,11 (App. Div. 1983).
180. Id.
181. See Rapp Ins. Agency, Inc. v. Baldree, 597 N.E.2d 936, 939-40 (111. App. Ct. 1992).
182. 7dat939.
183. See Paul L. Pratt, P.C. v. Blunt, 488 N.E.2d 1062,1068-69 (111. App. Ct. 1986); Joseph D. Shein, P.C. v. Myers, 576 A.2d 985, 986-87 (Pa. Super. Ct. 1990).
184. See Professional Bus. Servs., Co. v. Rosno, 589 N.W.2d 826, 831 (Neb. 1999).
185. See COLO. REV. STAT. 8-2-113(3) (1998); DEL. CODE ANN. tit. 6, 2707 (1993).
186. In 1960, the American Medical Association (AMA) focused primarily upon the fairness of a non-competition agreement as between the affected doctors, indicating that non-competition agreements are not inherently unethical. See Paula Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians: Protecting Doctors' Interests at Patients' Expense, 45 RUTGERS L. REV. 1, 6, 9 (1992) (citing the American Medical Association, Principles of Medical Ethics, Opinions and Reports of the Judicial Council 25). The AMA, however, did acknowledge, at least, that questions remained as to whether enforcement of an agreement was harmful to the public. See id. The AMA in 1980 declared that non-competition agreements are not in the best interests of the public, but the AMA continues to permit reasonable restraints on competition, at least as long as the patient has some choice of physician. See id. Current Opinion 9.02 of the American Medical Association Council on Ethical and Judicial Affairs, updated in June 1998, "discourages" non-competition agreements, but rules them unethical only if "they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients' choice of physician." COUNCIL ON ETHICAL AND JUDICIAL
187. AFFAIRS, AMA CODE OF MEDICAL ETHICS, CURRENT OPINIONS WITH ANNOTATIONS 158 (1998-1999 ed.). References to the public interest were dropped in 1994, but current Opinion 9.02 states that covenants not to compete "potentially deprive the public of medical services." Id.
188. 913 P.2d 84 (Kan. 1996).
189. See id. at 88, 93.
190. Id. at 96.
191. Id.
192. Willman v. Beheler, 499 S.W.2d 770, 777 (Mo. 1973) (noting that most communities are short on medical practitioners).
193. 320 S.E.2d 170 (Ga. 1984).
194. See id. at 173.
195. Id. at 173-74; see also Canfield v. Spear, 254 N.E.2d 433, 435 (111. 1969) (holding a doctor "can be as useful to the public at some other place in the State" as he can be in the place the non-competitor agreement is effective because the health of persons elsewhere is just as important).
196. See Pathology Consultants v. Gratton, 343 N.W.2d 428,436 (Iowa 1984) (refusing to enforce a covenant that would result in a monopoly on laboratory services on the grounds that a monopoly was "not in the best interests of the public"). But see Canfield, 254 N.E.2d at 435 ("If a severe shortage exists in any particular place [because of enforcement] young doctors will tend to move there, thus alleviating the shortage.").
197. See Rash, 320 S.E.2d at 173-74; Bauer v. Sawyer, 126 N.E.2d 844, 851 (III. App. Ct. 1955) (finding no evidence that enforcement would create a shortage of doctors in the restriction area and thus finding no public harm); see also Marshall v. Covington, 339 P.2d 504, 506-07 (Idaho 1959) (citing Bauer for the same proposition); Cogley Clinic v. Martini, 112 N.W.2d 678, 681-82 (Iowa 1962) (finding that a sufficient number of doctors remained available to the community to avoid public harm from enforcement).
198. 373 S.E.2d 449 (N.C. Ct. App. 1988).
199. 7d.at455.
200. See Weber v. Tillman, 913 P.2d 84, 93-95 (Kan. 1996) (discussing the public interest in the ability to access physician care).
201. Iredell, 373 S.E.2d at 453. Even if enforcement would create a shortage of doctors within the restriction area, the resulting harm still may not always be deemed sufficient to justify denying enforcement. See, e.g., Weber, 913 P.2d at 96 (enforcing a restriction). The Kansas court in Weber noted that each of the cases it cited for having held a restriction unenforceable because of the potential shortage of physicians dealt with "a shortage of physicians [in] specialties which were, for lack of a better term, medically necessary." Id. at 95. Perhaps the court would tolerate shortages in less critical specialties.
202. Cf. MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.1 (1983) (regarding pro bono obligations of lawyers).
203. In Blackburn, the Indiana Court of Appeals noted that a consequence of reducing the supply of lawyers is to increase the cost of legal services. See Blackburn v. Sweeney, 637 N.E.2d 1340,1343 (Ind. Ct. App. 1994).
204. Robert Parker concludes that enforcement of non-competition agreements among lawyers would be relatively unlikely to affect adversely the supply of legal services in a macroeconomic sense. See Parker, supra note 76, at 15. "Such agreements do not reduce either the number of lawyers or the time they have available to serve clients." Id. In a very small legal services market, enforcement of a non-competition agreement, even if limited to preclude only representation of the original firm's clients, could deny a member of the public any effective access to local legal representation. For example, a client of the firm might continue to retain the firm because of the restrictive covenant prohibiting the departing lawyer from representing the client. While that client would continue to have legal counsel, an adverse party might also be unable to hire the departing lawyer because of the lawyer's conflict of interest. See MODEL RULE OF PROFESSIONAL CONDUCT Rule 1.9 (1983). If no other competent lawyers are available, that adverse party is left without a local lawyer. If the noncompetition agreement were not enforced and the original client followed the departing lawyer, the lawyer's old firm might be allowed to represent the adverse party in certain circumstances thereby providing local legal counsel. See MODEL RULE OF PROFESSIONAL CONDUCT Rule l.lO(b) (1983).
205. Cohen v. Lord, Day & Lord, 550 N.E.2d 410,413 (N.Y. 1989).