Upon Leaving a Firm: Tell the Truth or Hide the Ball

This Article analyzes the relevant ethical mandates and the history of postemployment restrictive covenants between lawyers. In so doing, this Article raises and answers questions concerning the traditional position taken by lawyers. First, Part II examines the conflicts that increasingly occur when attorneys depart their firms. Part III discusses the evolution and ethical rationale underlying the traditional, per se impermissibility of noncompetition clauses between lawyers. Next, Part IV acknowledges the unique position of lawyers in the public sphere and the judiciary's use of a reasonableness standard, rather than a commercial standard, to evaluate attorney restrictive covenants. Part V examines the Cohen decision, while Part VI analyzes the recent judicial trend in upholding postemployment covenants. Part VII then discusses the balancing test currently used to reject the per se impermissibility of noncompetition clauses between lawyers. Part VIII discusses the adverse impact resulting from the application of the balancing test. Finally, in Part IX, this Article concludes that the legal profession is inherently different from any other profession, mandating that attorney noncompetition clauses be treated differently in order to protect the best interests of the client

An Independent and Adequate Procedural Rule Bars a State Prisoner, Who Has Defaulted His Entire Appeal, from Asserting a Federal Claim Unless the Prisoner Demonstrates Cause for, and Actual Prejudice Resulting from, the Procedural Default, or in the Alternative, Proves a Fundamental Miscarriage of Justice Will Result if the Federal Habeas Court Fails to Hear the Claim.

The current jurisprudential regime accepts a blanket procedural default policy which denies the federal habeas court its proper constitutional role. An ideological coup d’etat is needed which reappraises the modern procedural default doctrine and supplants it with a rule in the spirit of Fay v. Noia. Such a revolution would emphasize the federal habeas court’s role as a defender of constitutional rights. In an era of multifarious litigation and sociological jurisprudence, a habeas prisoner should not lose his life because a negligent public defender failed to preserve the right in procedural formaldehyde. On April 23, 1982, a court convicted Roger Keith Coleman of rape and murder. After exhausting his appeal, Coleman filed a petition in state court requesting a writ of habeas corpus. The court denied the writ, he filed an appeal, and the appeal was dismissed as untimely. The United States Supreme Court refused to hear Coleman’s appeal after denial of his petition. An independent and adequate state procedural rule bars a prisoner, who has defaulted his entire appeal, from asserting a federal claim. Unless, however, the prisoner demonstrates cause for, and actual prejudice resulting from procedural default, or proves a fundamental miscarriage of justice will result if the federal habeas court fails to hear the claim. The modern procedural default rule improperly substitutes a prisoner’s valid constitutional claim for minor improvements in judicial efficiency when it makes the prisoner a victim of his lawyer’s negligence. Assuming Coleman’s claims were valid and that his trial would have turned out differently without the errors, the inescapable conclusion is a man was improperly forced to pay the ultimate price for a notice requirement filed seventy-two hours late. Levying such a high price for a procedural default is insensitive. Levying the ultimate price for a lawyer’s inadvertence is intolerable

Upon Leaving a Firm: Tell the Truth or Hide the Ball

This Article analyzes the relevant ethical mandates and the history of postemployment restrictive covenants between lawyers. In so doing, this Article raises and answers questions concerning the traditional position taken by lawyers. First, Part II examines the conflicts that increasingly occur when attorneys depart their firms. Part III discusses the evolution and ethical rationale underlying the traditional, per se impermissibility of noncompetition clauses between lawyers. Next, Part IV acknowledges the unique position of lawyers in the public sphere and the judiciary's use of a reasonableness standard, rather than a commercial standard, to evaluate attorney restrictive covenants. Part V examines the Cohen decision, while Part VI analyzes the recent judicial trend in upholding postemployment covenants. Part VII then discusses the balancing test currently used to reject the per se impermissibility of noncompetition clauses between lawyers. Part VIII discusses the adverse impact resulting from the application of the balancing test. Finally, in Part IX, this Article concludes that the legal profession is inherently different from any other profession, mandating that attorney noncompetition clauses be treated differently in order to protect the best interests of the client