Villanova Law Review
Over the last fifteen years, two divergent common law views have emerged regarding the enforceability of noncompetition clauses between attorneys. The first is exemplified by two Oregon appellate cases and the landmark New York Court of Appeals’ decision, Cohen v. Lord, Day & Lord, whereby noncompetition clauses between attorneys were found void as against public policy. The second adopts a contrary opinion, questioning the conventional wisdom that those who seek legal advice must be afforded the broadest possible choice of counsel.
At present, a balancing test is used to reject the per se impermissibility of noncompetition clauses between lawyers. However, the application of this balancing test has adverse effects. These effects, as well as the conflicts that occur when attorneys depart their firms, and the evolution and ethical rationale underlying the traditional, per se impermissibility of noncompetition clauses, therefore require further review. The legal profession is inherently different from any other profession, and as such mandates that attorney noncompetition clauses be treated differently in order to protect the interests of the client.
Charles E. Cantú and Jared Woodfull V, Upon Leaving a Firm: Tell the Truth or Hide the Ball, 39 Vill. L. Rev. 773 (1994).