Washington Law Review


Glenn S. Draper


Courts uphold most post-employment covenants not to compete if they meet a three part reasonableness test that balances the interests of the employer, the employee, and the public. Lawyers' covenants not to compete, however, are treated differently. Courts hold lawyers' agreements that prohibit competition with their former firms per se invalid, in order to preserve clients' unrestricted freedom to choose their attorneys. Courts have split on whether to apply the per se rule to invalidate lawyers' agreements that discourage rather than prohibit post-employment competition. The California Supreme Court's recent decision in Howard v. Babcock, applying the familiar reasonableness test to a lawyer's agreement discouraging post-employment competition, is sure to add to the controversy. This Comment critically analyzes the application of the per se rule to covenants that discourage rather than prohibit attorneys from competing with their former firms. The Comment concludes that the reasonableness test applied to restrictive covenants in other professions adequately protects client choice while giving consideration to firm interests and should apply to lawyers' covenants not to compete.

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