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

Abstract

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

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